Shared Care

When parents separate or divorce, usually a private agreement is made about the care of the children. It is only if an agreement can’t be reached that the matter needs to go to court.

80% of matters we deal with at Rafton Family Lawyers are settled out of court, usually through family mediation. This means that with the right support, it is likely you can settle the care arrangements for your children without the stress and cost of legal proceedings.

The law uses similar-sounding terms to describe different parenting arrangements. Here are some of the terms you will hear and their meaning.

What is shared care?

Shared care is a parenting arrangement where both parents spend a similar or equal amount of time caring for their children. Usually, in shared care, the children go between homes every other week. Shared care is based on the right of the child to know and have a meaningful relationship with both parents.

Whether or not shared care is granted depends on what is in the best interest of the child.

The court will consider:

  • The benefit the child receives from the living arrangement
  • The physical and psychological health and safety of the child
  • How practical it is for the child to spend equal time living with both parents

The court will always consider the safety of the child as a priority over the child having a relationship with both parents.

What does parental responsibility mean?

In Australia, the word ‘custody’ is no longer used and has been replaced with ‘parental responsibility’. Parental responsibility is the legal responsibility of a parent to make choices that shape their children’s lives.

These choices include:

  • Where the child will go to school
  • The role of religion and culture in the child’s upbringing
  • Decisions about the child’s health
  • Changing where the child lives, especially if this hinders the child visiting one of their parents
  • Taking the child out of the country

Parental responsibility is usually split equally between parents, regardless of the child’s living situation. This means that a parent can have 50% parental responsibilities and spend time with the child every second weekend. However, the court can take parental responsibilities away from a parent if the parent is deemed unfit to make decisions about the child’s life.

The court can also delegate different percentages of parental responsibilities for different issues. For example, one parent might have 100% of the decision making responsibility in regards to the child’s health care, while both parents equally share responsibilities for everything else the child needs.

Parental responsibilities are valid until the child turns 18 unless the child marries or is in a de-facto relationship.

Parenting orders

Parenting orders set out the legal terms that both parents have to abide by. These orders include where the children live, who the primary carer is and how much time children spend with each parent.

If the child’s living arrangement is one of shared care, this will be included in the parenting orders.

How can I move forward to create parenting arrangements?

If you and your former partner reach an agreement about your child’s living arrangements, you can have these terms written up in a parenting plan or have them turned into a legally binding parenting order.

If you feel that your situation is complicated and can’t be resolved through mediation, you can contact us for advice on how to manage best and find out what your options are.

Read our plain English handbooks

These fact sheets are designed to provide an overview of the relevant issues and systems so that you have a better understanding of the process.

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