Equal shared responsibility

The introduction of a ‘presumption of equal shared parental responsibility’ was one of the more controversial – and misunderstood – changes introduced in the 2006 Amendment Act. The presumption means that if parents are asking the court to make a parenting order, and the conditions for application of the presumption are satisfied, the court must first consider whether it would be in the best interests of the child to make an order providing for the child to spend equal time with both parents, or alternatively, ‘substantial and significant’ time with both parents.

It is important to understand that the presumption of equal shared parental responsibility does not mean a presumption of equal time with both parents. The legal effect of the presumption is to direct the court to consider certain issues in making its decisions about orders. The child’s best interests are still the paramount consideration in the final analysis (for more details see Best interests of the child.)

Whether or not an ‘equal time’ order is eventually made, the court may make an order for ‘shared parental responsibility’ in any case. This order legally binds the parents (until the child turns 18) to consult with each other and to try to come to agreement with each other about decisions affecting the child’s health, schooling, ability to see or communicate with either parent, or religion. The policy behind this change is to encourage co-operative, shared parenting between separated parents, and reduce the incidence of solo decision-making on major issues affecting the child by one parent without the knowledge or consent of the other.

The presumption of equal shared parental responsibility and the requirement to consult on major issues do not apply to all parents, only to parents applying to the court for an order. Co-operative parenting after separation is generally considered to be a good idea for most families.