The Family Law Act requires that, when a Court is making a decision about parenting orders after separation, it must apply a presumption of “equal shared parental responsibility” (ESPR), unless there has been abuse or family violence. Sometimes parents think that this is a presumption in favour of “equal time” or week about arrangements after separation. That is not the case.
ESPR means that parents are required to consult and attempt to reach agreement in relation to “major long term issues” concerning their children. These include issues such as where a child goes to school, significant medical treatment, overseas travel, relocation and the child’s religious affiliation. If parents cannot reach agreement about these issues (or at least if one parent is not prepared to acquiesce with the other’s decision) then a Court will have to decide the outcome based on the best interests of the child principle. It is relatively common for the family law courts to be asked to make decisions about overseas travel and relocation, and less commonly they make decisions about schooling and religious issues.
The presumption of ESPR does not apply in cases of family violence, and can be rebutted if that is in the child’s best interests (for example, if conflict between the parents makes reaching agreement on major long term issues a fraught exercise). If a Court decides not to apply the presumption of ESPR, or that it is rebutted, it will usually make an order for one parent to have “sole parental responsibility”, often with an obligation to keep the other parent informed about the decisions they make.
The fact that parents have ESPR does not mean that schools, doctors or other providers of services have to get the consent of both parents- in fact the Family Law Act makes it clear that is not the case. Such providers are entitled to act on the consent of just one parent, although private providers can insist on the consent of both and will sometimes do so, particularly if joint liability for fees is an issue.
Parents with ESPR do not have to consult in relation to every day issues, including what children eat, wear, where they sleep, and what extra-curricular activities they participate in. Having said this, many separated parents with a cooperative post-separation parenting dynamic find it helpful to discuss and agree common routines and arrangements.
The question of how much time children spend with, or spend living with, each of their parents, is separate from the question of parental responsibility. However, if the Court is making an order for ESPR it must consider whether equal time is in a child’s best interests and reasonably practicable. If so then the court must consider making an order for the child to spend equal time with each parent. There is no presumption that a child will live in an equal time arrangement.
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