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Does ‘shared’ mean ‘equal’?

In 2006 significant changes were made to the Family Law Act (The Act). While many of the changes have been lauded as progressive and responsive to the best interests of children, they have created confusion amongst Family Court litigants as to their entitlements with regard to parenting. Perhaps the most confusion concerns the idea that ‘shared parenting’ means ‘equal parenting’. In fact, they do not mean the same thing and small differences in language create large differences in terms of court outcomes. For instance:

1. The law presumes, as a starting point, that each parent will share ‘parental responsibility’. This means that each parent will have some input into the major long-term decisions affecting a child, such as the choice of religion, the choice of school and major health decisions.
2. The law also expects that both parents have ‘meaningful involvement’ in the children’s lives.
3. The law also aims for parents to share responsibilities concerning the ‘care, welfare and development’ of their children.

While it is easy to interpret this language as implying the law supports a child spending equal time with each parent, equal parenting time is different and entirely independent concept in Family Law. Equal parenting time is exactly what it sounds like – each of the parents have equal or approximately equal parenting time with the children either pursuant to an agreed-upon parenting plan or a Court Order. Truly equal parenting time is a difficult thing to come by and there are certain prerequisite criteria that must be satisfied for this sort of parenting arrangement to work, namely:

1. The parents live relatively close together – If one parent lives in Sydney and the other in Newcastle, equal time would be highly unlikely.
2. The parents must be able to get along and communicate – Parents who cannot agree to simple things can rarely be entrusted with equal parenting, which requires agreement, compromise and civility.
3. The impact on the child – While equal parenting may be desired by each of the parents, it must be positive for the child. If not, the Court will not implement it.

The issue that comes across in practice is that the objectives of The Act (such as involving both parents and sharing duties as to the children), coupled with the promise of shared parental responsibility, has created a belief that there is an entitlement to equal parenting time. This is simply not the case, especially in situations which do not fulfil the criteria stated above. A parent working 70 hours per week living 150 km away is probably not a good candidate for equal parenting time, yet that parent is absolutely entitled to shared parental responsibility. This gentle distinction is something we quite often explain to our clients, who have come in to our office with an expectation of equal parenting as a matter of right.

For more information regarding shared parenting, equal parenting or your parenting matter, contact our Family Law Team.