The abolition of Custody and introduction of Equal Shared Parental Responsibility.
Updated: Feb 9, 2021
It is not uncommon for us to hear clients state "My partner says they want full custody" and "I want full custody". "Custody" in Family Law in Australia was abolished in 2006. Back in the day, when people broke up, and relationships or marriages ended, people would argue about who was getting the house, and who was getting the car, and who was getting the kids. Essentially children were treated as property. Clearly this was problematic, and thus it lead to legislative changes.
Equal Shared Parental Responsibility In 2006, the introduction of the Family Law Amendment (Shared Parental Responsibility) Act 2006 amended Part VII of the Family Law Act 1975 (Cth). In simple terms, this amendment introduced a rebuttable presumption, i.e. "the starting point", being that each parent had equal shared parental responsibility for all major decisions that related to the development, care, and well-being of the child. Major decisions include, but are not limited to, matters relating to education, health and medical issues, religion, significant travel etc. It is important to note that 'equal shared parental responsibility' ("SPR") does not necessarily mean that the child lives and/or spends time equally between each parent. The time that the child spends with each parent and the residency arrangements of the child, are considered on a case by case basis. The 2006 amendment placed particular obligations on the courts to consider 'equal time' and 'substantial and significant time' arrangements where the presumption applied.
Residency The residency or primary residency of the child is considered on a range of factors, with the best interests of the child being paramount. Particularly in WA where distance may be a factor, matters that will need to be considered will include the age of the children, and the distance between the parents.
If, for example, the child is of school age, and has been attending a local district school, and the other parent has relocated some distance away, it is difficult to consider the child living equally between each parent where one parent is unable to do the mid week school pick up's and drop off's. The answer in this situation is again based on the facts of the individual case.
Sole Parental Responsibility The presumption of shared parental responsibility may be rebutted where family violence and/or exposure to family violence, child abuse, child neglect, or other harms or risks to the child have existed. In these cases, the parental responsibility may be limited and partially shared. In some circumstances, the court may make orders for one parent to have sole parental responsibility for all major decisions. There are other situations where a parent will have sole parental responsibility. For example, while a child is in the care of a parent, that parent will have sole parental responsibility for the day-to-day care of the child for all non-major decisions relating to the well-being, and care of the child. Decisions such as whether the child needs to stay home from school due to illness, what the child will eat, bedtimes, if the child needs a haircut and so on, will not require a residing parent to contact the other to discuss.
Grandparents It is not uncommon for grandparents or other family members that provide care the the children (and sometimes non-biological carers) a to seek parental responsibility of child that has been in their care, or ought to be in their care. Significant family carers of children may have standing in court to make an application for parenting orders. If you believe this relates to you, we urge you to please contact us to discuss.
Family Dispute Resolution (A.K.A Mediation) is Mandatory
With the 2006 legislative changes, parents that come into dispute are required to engage with an approved FDR provider. There are so many resources online regarding the FDR process. Go here to read more.
Please note: Where you feel that you have been subjected to family violence, or your parenting issues are urgent, or you have a personal situation that would prevent you being able to effectively engage in FDR, then you may be able to get an exemption. We recommence you call our office to discuss.
Conclusion Parenting arrangements are a complicated area, and you should seek legal advice to discuss your set of circumstances. Call us 6268 4910.
Disclaimer: All information provided in this blog is for the purpose of information only, and it is not intended to be construed as legal advice, and there is no intention on the behalf of Booragoon Family Lawyers to create or otherwise imply a client/legal practitioner relationship. No person should rely on this information for any legal purpose and they should seek legal advice from a Family Law Practitioner or Community Legal Centre or Contact Us.
Written by Craig Zwetsloot, Principal Solicitor at Booragoon Family Lawyers.