Shared care, joint custody and equal time – what does Equal Shared Parental Responsibility really mean?

At family law in Australia there is a presumption of what is known as ‘Equal Shared Parental Responsibility’. This presumption raises many questions.

Does this mean that there is a presumption that each parent will spend equal time with the children? Is there a presumption at family law that there should be ‘shared care’? Does Equal Shared Parental Responsibility necessarily lead to joint custody?

The short answer is ‘no’, but there is a lot of confusion surrounding what is meant by Equal Shared Parental Responsibility. Put at its most simple, ‘Equal Shared Parental Responsibility’ is about parents making joint decisions about ‘major long-term issues’; things such as childrens’ health or education or religion. ‘Equal time’ is about the actual time that the parents spend with the children. And while some people might think that shared care, joint custody or 50/50 time is the ‘fairest’ outcome for parents, it is not necessarily in the best interests of the children.

Indeed the law recognises this. In a seminar paper delivered in 2009, Federal Magistrate Phipps (as he then was) points out 3 main categories of cases where Equal Shared Parental Responsibility may not be in the best interests of the children. Briefly, these are:

• family violence
• abuse of children
• when parents are incapable of consulting with each other and making joint decisions.

There has been a great deal of criticism of the presumption of Equal Shared Parental Responsibility. Professor Belinda Fehlberg argues that the presumption is confusing:

‘that many people now mistakenly assume the starting point is that children should spend equal time with each parent. Parents and lawyers report fathers feeling entitled to 50-50 care and believe the reforms have favoured fathers.

The legal starting point is in fact equal shared parental responsibility or major decision-making.’

This concern is shared by His Honour Family Court Judge Richard Chisholm and the Australian Greens. For example, the Greens have been concerned that:

‘…while ‘equal shared parental responsibility’ and ‘equal time’ are not one and the same, they are inter-related in a way that creates an unacceptable formula in the bill… [and]…that with a starting point of a child spending ‘equal time’ or ‘substantial and significant time’ with each parent this will be a de facto presumption of equal time…’

This post is not suggesting that the presumption of Equal Shared Parental Responsibility should be repealed. There are many situations where it is perfectly appropriate for both parents to make major decisions such as the childrens’ health and education and religion jointly. There are also many situations where equal time is in the best interests of the children. However in seeking joint custody, shared care, or 50/50 time, it is important to understand that the best interests of the children are paramount. The Court must look at each case on its merits, and that while there is a presumption of Equal Shared Parental Responsibility, it can be rebutted, and there is no presumption, per se, of joint custody or shared care.

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Marc Testart

Principal Family Lawyer

Testart Family Lawyers

Experience. Excellence. Compassion.

Useful links:

• Sydney Morning Herald opinion piece by Belinda Fehlberg
• Single Parenting Successfully
• Senate Committee reports on Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011