Shared Care in Parenting Matters
The Australian family law system does not use the term ‘child custody’. The term used in Australia is parental responsibility, which refers to the legal authority to make important decisions for a child. A related term is ‘shared care’, which refers to the time that the child lives with each parent in their separate households. While Australian law acknowledges that most children benefit from having a meaningful relationship with both their parents, it is no longer a legal presumption in family court decisions that parents should equally share the care of their children. This article looks at the legal framework and implications of shared care in parenting matters in Australia.
How is the care of a child determined?
When parents separate, arrangements for their children’s care can sometimes be made amicably. Many parents reach private agreements, sometimes with the support of mediation or negotiation procedures. Such private agreements between parents can be formalised in two ways:
- a parenting plan, a written agreement that sets out parenting arrangements, which is not legally binding but provides a clear framework for parents to work together as co-parents
- consent orders, which are court-approved arrangements about the care of children that is legally binding and enforceable.
If the parents cannot agree on a parenting arrangement, the matter can be resolved in the Federal Circuit and Family Court of Australia (FCFCOA). The FCFCOA focuses on which arrangement will be best for the child, with the hearing outcome issued as parenting orders.
Defining shared care
Shared care involves children spending substantial time with each parent. However, shared care is not synonymous with equal time. The result of shared care should be that children have meaningful and significant engagement with both parents, tailored to their individual needs and circumstances. These arrangements can provide for:
- the child to spend an equal number of days with each parent, often alternating weeks (equal time)
- the child to spend meaningful time with one parent (often on weekends, holidays, and special occasions) while living primarily with the other parent (substantial time).
The goal of shared care is not merely to divide time in a way that meets the practical needs of the family, but to ensure that the living arrangements support the children to maintain strong relationships with both parents and experience consistency in their upbringing.
Key considerations for shared care
The Family Law Act 1975 governs parenting arrangements in Australia, with its central principle being the best interests of the child. The court bases all decisions about shared care on what will promote the child’s welfare, safety, and development.
When determining whether shared care is appropriate, the court evaluates the:
- Best interests of the child. This involves assessing factors such as:
- the child’s safety and protection from harm
- the benefit of having a meaningful relationship with both parents
- the child’s views (if they are mature enough to express them).
- Reasonable practicality. The court also examines whether shared care is feasible given practical realities, such as:
- the parents’ ability to communicate and cooperate
- the distance between the parents’ homes
- the parents’ work commitments or other responsibilities.
Shared care arrangements are only approved when they meet both criteria in that the arrangement is in the child’s best interests and is reasonably practical.
Benefits of shared care
Shared care offers numerous benefits when implemented effectively and in the right circumstances:
Fostering meaningful relationships
Shared care allows children to maintain close bonds with both parents. This continuity fosters emotional stability and a sense of security, essential for a child’s well-being.
Improved outcomes for children
Research indicates that children benefit from the involvement of both parents in their lives, leading to better emotional, social, and academic outcomes, provided the arrangement is free from conflict and harm.
Encouraging co-parenting
Shared care encourages parents to share responsibility for their children, promoting collaboration and reducing the burden on any one parent.
Providing predictability
A well-structured shared care arrangement reduces disputes by creating clear and predictable routines for the child and both parents.
When is shared care not suitable?
While shared care can be beneficial, it is not suitable for every family situation. Courts are unlikely to approve shared care arrangements if:
- one parent poses a risk to the child’s physical or emotional well-being (for instance, due to abuse, neglect, or family violence)
- shared care requires a certain level of communication and cooperation which may not be possible in high-conflict relationships
- significant distances between parents’ homes, demanding work schedules, and other logistical challenges render shared care impractical
- a child’s individual needs, developmental stage, or expressed preferences are incompatible with a shared care arrangement.
A shared care arrangement can provide a foundation for successful co-parenting and positive outcomes for children after a separation. However, it is not a one-size-fits-all solution. Courts carefully consider each family’s circumstances to determine whether shared care is in the child’s best interests and practical for the parents. Parents navigating shared care must approach the process with a collaborative and child-focused mindset. With the right support, shared care can provide a foundation for effective co-parenting and positive outcomes for children.
For tailored advice on parenting arrangements or other family law matters, consult experienced legal professionals who can guide you through the process. Please get in touch with Go To Court Lawyers on 1300 636 846 for advice about parenting agreements or any other family law matter.