Shared responsibility
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Who is responsible for decisions about children?
As a parent you have legal responsibility for your children under 18 whether you are married, separated or divorced, unless the court orders otherwise.
Equal shared parental responsibility
When the court is asked to make a parenting order, it must look at what is in the best interests of the children.
The court will presume it is in the best interests of the children for the parents to have equal shared parental responsibility. Presume is another way of saying a starting point that the court will begin with.
Equal shared responsibility means that both parents share the right to make major long term decisions about the child.
If a parenting order says that both parents (or other significant persons) have shared parental responsibility, then those persons must talk to each other and make a genuine effort to make a decision together about major long term decisions about the child.
The court will not presume that equal shared parental responsibility is in the best interests of the children if it finds that the other parent (or a person who lives with that parent) has been violent in the family or has been abusive to the child or children (or another child relative).
The court may also be satisfied by other evidence (not related to family violence or child abuse) that equal shared responsibility is not in the best interests of the child.
Can I make any decisions without talking to the other parent?
Major long term issues includes children's education, religious and cultural upbringing, health, names and any changes to their living arrangements that make it significantly more difficult for them to spend time with a parent.
You and the other parent do not have to talk to each other about other issues that are not major and long-term, for example such as what a child eats or wears, unless a court decides you must.
Is this the same as equal time with each parent?
Equal shared parental responsibility means that parents share the big decisions about the children. This is different from children spending an equal amount of time with each parent.
If the court presumes that the parents should have equal shared parental responsibility, it must look at if spending equal time with each parent would be in the children's best interests and is reasonably practical. If so, it must look at making an order for the children to spend 'equal time' with each of the parents.
When equal time is not appropriate, the court then must look at whether an order for substantial and significant time is practical and in the children's best interests.
Substantial and significant time means the time a child spends with a parent on weekends, holidays and weekdays. It must also include time spent on daily routine activities and for events that are important to the child such as sporting events, birthdays and school concerts.
To decide whether to order the children spend equal or substantial and significant time the court looks at:
- how far apart you live from each other
- your ability to care for the children currently and in the future, with either arrangement
- your ability to talk to each other and sort out any difficulties you might have with parenting arrangements, both currently and in the future
- how either arrangement will affect the children
- anything else the court thinks is important.
What if I start a new relationship?
If you are separated you do not have to talk to your ex-partner about starting a new relationship.
You also do not have to talk about moving to a new area, unless this affects the time the children spend with their other parent. If the move makes it much more difficult for this to happen, then you need to speak to your ex-partner about it and try to come to an agreement about the move. If there is or has been family violence or child abuse, get legal advice.
Acknowledgement - Prepared using fact sheets which are copyright to the Commonwealth of Australia and National Legal Aid.