Shared Responsibility and Visitation – What are they and why are they different?
Under the Family Law Act (the Act), Shared Parental Responsibility provides that: When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Parental Responsibility as defined by the Act means all duties, powers, responsibilities and authority which parents have over a child.
Examples of this include:
- Medical and Health Treatment Decisions
- Where the child will live
- Day to day decisions (what the child will eat, what they will wear)
What does Shared Parental Responsibility not cover? Visitation Rights.
Shared parental responsibility does not cover the time spent with the children by the parents and in some cases, grandparents.
A Grandparent is defined as the parent of the mother or father of the child or children.
Under the Family Law Act, Grandparents do not have an automatic right for contact. However, that does not prevent them making an application under the Family Law Act to request access and time with the children.
An application by a Grandparent with the Family Court may be appropriate where the Parents are not fit to look after the children and it is in the best interests of the children that the Grandparent have care of the children.
Time Spent With Children vs Best Interests of the Child
Whilst it may be in the best interest of a child that time be spent equally between parents, it is not automatically assumed. When Contact time is agreed to be split 50/50 between the parents, the presumption is easier to understand. But when the time is not equal between the parents (For example, Parent A has the child for 8 days a fortnight, Parent B has the child for 6 days a fortnight), the presumption of shared parental responsibility still means that each party has equal power in the decision making of the child.
Can Shared Parental Responsibility be rebutted?
The only way in which the parental responsibility presumption can be rebutted is by application to the court and with an order that expressly varies the shared parental responsibility presumption. Without the application to the court and the expressly made order, the presumption of shared responsibility still stands, and each party will have an equal say in the decision relating to the child or children.
Alternatives to Shared Parental Responsibility?
The common alternative is the sole parental responsibility. This means that the court has deemed that it is in the best interests of the child or children that the decision making for the child or children be left with only one of the parents. This may be appropriate where the court views the other parent to be unsuitable to co-parent.
Examples of this may include:
- Where the other party cannot be located
- The other party has caused family violence or is at substantial risk of causing family violence.
In can also be ordered that there be a mix of sole parental responsibility and shared responsibility. This could happen where the party who has substantial time with the children can decide on the day-to-day decision of the child or children whereas long term decisions can be split between the parties, for example, one parent making decisions on education and the other parent on health matters.
If you are needing assistance with parenting matters, please contact Chris Henderson.
At Phillips & Wilkins, Chris practices in the areas of Property Law, Conveyancing and Family Law. Chris has grown up in the Northern Suburbs and continues to be a part of the local community as being a member of the Old Paradians Amateur Football Club and the Mill Park Cricket Club. Learn more about Chris' legal experience.