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What is equal shared parental responsibility in Australia?
What is Equal Shared Parental Responsibility
Equal Shared Parental Responsibility (ESPR) is the legal presumption that both parents, even after separation or divorce, have equal responsibility for making major long-term decisions about their child’s life.
It does not necessarily mean parents will have equal time with the child.
Key Principles:
- Best Interests of the Child: The court prioritises the child’s best interests when considering ESPR. This presumption exists because it’s often regarded as beneficial for a child to have meaningful involvement with both parents.
- Genuine Consultation: Parents are expected to consult with each other and genuinely try to reach an agreement on major decisions.
- Not Absolute: There are specific situations where ESPR is not applicable (see below).
What Does Presumption Of Equal Shared Parental Responsibility Mean?
Equal Shared Parental Responsibility is a legal presumption within the Family Law Act that, unless there’s evidence to the contrary, the court must presume that it is in the best interests of a child for their parents to have equal shared parental responsibility.
This presumption highlights the value of children having meaningful relationships with both parents, even after separation.
When the Presumption Does NOT Apply
The court will not apply the presumption of ESPR if there are reasonable grounds to believe:
Family violence or abuse
One parent (or someone in their household) has engaged in abuse of the child or the other parent.
Child protection concerns
There are concerns about a parent's ability to care for the child properly.
Impracticality
It would be impractical for parents to consult on decisions, such as if they live far apart or have severe communication difficulties.
Equal Shared Parental Responsibility Before 2024
Before May 2024, there was a strong presumption of Equal Shared Parental Responsibility (ESPR) in Australian family law. Here’s what that meant and its implications:
Key Features
- Presumption, Not Mandate: The court started from the position that ESPR was in the child’s best interests, emphasizing both parents’ continued involvement in major decisions. It wasn’t a guarantee of equal time with the child but focused on shared decision-making power.
- Evidence to the Contrary: The presumption could be overturned if one parent provided evidence indicating ESPR was not suitable. This included circumstances such as:
- Family violence or abuse
- Risk to the child’s safety
- One parent’s inability to make decisions in the child’s best interests
- Encouraging Cooperation: Even when the presumption was overturned, the court still encouraged parents to communicate and make decisions together in the child’s best interests whenever possible.
Practical Implications
- Negotiations: The presumption of ESPR often influenced discussions between separating parents. It meant shared decision-making about significant aspects of the child’s life was the starting point for creating parenting plans.
- Less Court Intervention: Ideally, the presumption reduced the need for court orders as parents were encouraged to find cooperative arrangements to meet the child’s needs.
- Potential Challenges: In some cases, the presumption could lead to conflict where parents had difficulty communicating or agreeing on major decisions. This might have necessitated mediation or even court intervention.
Any Questions?
Equal Shared Parental Responsibility After 2024
After May 2024, there is no longer a legal presumption of Equal Shared Parental Responsibility (ESPR) in Australia. Here’s what you need to know:
Changes to the Law
- Repeal of the Presumption: The Family Law Amendment Bill 2023 removed the presumption of ESPR. This means courts no longer start from the assumption that both parents should share decision-making power equally.
- Focus on Best Interests: The core principle of prioritising the child’s best interests is now the law’s central focus. Courts will examine each case individually to determine the arrangements most beneficial for the child, without any preconceived notions.
What This Means in Practice
- No Automatic ESPR: Parents will not automatically be assigned equal shared parental responsibility after separation.
- Individualised Assessment: The court will consider each family’s specific circumstances to determine the appropriate division of parental responsibility. This could still result in arrangements similar to ESPR if it best suits the child.
- Flexibility: Removing the presumption allows for more tailored arrangements, particularly in cases where shared decision-making might not be practical or safe.
- Safety Prioritised: With no presumption in place, the court can place greater emphasis on a child’s safety and wellbeing, especially in matters related to family violence or abuse.
Possible Outcomes After 2024
- Continued Shared Responsibility: Many parents might still reach agreements that involve elements of shared responsibility where it aligns with the child’s needs.
- Sole Parental Responsibility: In certain situations where safety is a concern or shared decision-making would harm the child, the court might order sole parental responsibility for one parent.
- Specific Orders: The court can make detailed orders specifying which parent has responsibility for particular decisions (e.g., one parent decides on health, the other on education)
Why the Change Occurred
- Addressing Misconceptions: “Equal shared parental responsibility” was often misinterpreted as meaning equal time, leading to confusion and conflict.
- Emphasising Best Interests: The change emphasises that the child’s best interests are unique to each case and should be the sole determining factor in decisions about parental responsibility.