“Divorce is fine, but the child must stay with me!”

When former spouses go their separate ways, custody of minor children often becomes the focal point of the dispute between them.

In China, it is fairly common for custody of a child after divorce to be granted to either parent by agreement or court order. In Australia, however, obtaining sole parental responsibility of a child is not easy. When Australian family law considers who should have parental responsibility for a child, the decision is made based on what is in the “child’s best interests”.

So what are the child’s best interests? The two most important standards set out in Australian law are:

1. Is it beneficial for the child to have a meaningful relationship with both parents? In other words, would depriving either parent of parental responsibility be detrimental to the child’s development?

2. How to protect the child from physical or psychological harm arising from abuse, neglect or family violence.

Therefore, in Australia, it is more common for parents to have “Equal Shared Parental Responsibility” for the child. Unless the court has sufficient reason to believe that either parent would threaten the child’s physical or mental wellbeing (for example, due to violence or alcohol abuse), or that “Equal Shared Parental Responsibility” would be detrimental to the child’s healthy development, both parents will share parenting of the child.

What is “Equal Shared Parental Responsibility”? Is “equal sharing” the same as splitting everything 50/50?

“Equal Shared Parental Responsibility” generally means that, after divorce, both parents have joint decision-making authority over all aspects of the child’s life, including education, medical care and social welfare — for example, what kind of school the child will attend.

At first glance, “Equal Shared Parental Responsibility” sounds as if the parents must split every aspect of raising the child 50/50, including the time spent with the child. But does “equal sharing” really mean an exact 50/50 split? Today we will look at a case study that sheds new light on what “Equal Shared Parental Responsibility” actually means.

Case study: MRR v GR

Facts

The child in this case was born in 2002, and the parents separated in 2007. The child’s mother wanted the child to live with her in Sydney, while the child’s father, due to work requirements, returned to Mount Isa in Queensland. The two locations are a long way apart. After the divorce, the parties disputed how to allocate time with the child and who the child should live with.

Allocation of parental responsibility

Under Australian law, when allocating parental responsibility for a minor child after divorce, the court will first presume that “Equal Shared Parental Responsibility” is most beneficial for the child’s development. However, if either spouse can show that equal sharing would not be in the child’s best interests, the court may decide not to order “Equal Shared Parental Responsibility”.

Even where the court finds that a divorcing couple should share parental responsibility equally, this is not automatically equivalent to the parents splitting time with the child exactly 50/50. Whether the father and mother should have “equal time” with the child depends on whether doing so would be in the child’s best interests. The court will also consider whether equal time is reasonably practicable. Where equal time between parents and child is not achievable, the court will consider whether it would be in the child’s best interests — and reasonably practicable — for the child to spend “substantial and significant time” with each parent.

So what circumstances might make “equal time” impracticable or not in the child’s best interests?

Example 1: After the divorce, the father moves to Paris for work, while the mother stays in Sydney. Because the parents are so far apart, “equal time” would mean the child either shuttles constantly between two locations or gives up a stable school and social life to maintain the time balance — clearly neither reasonably practicable nor in the child’s best interests.

Example 2: At the time of divorce, the child is only 4 years old and very young. After the child was born, the mother gave up work to devote herself to caring for the child, while the father worked to support the family. Because the child is young, they are heavily dependent on the mother — needing her by their side every night to fall asleep and accustomed to being fed by her at every meal. In this situation, giving the father an equal amount of time to care for the child could disrupt the routine the young child is used to, causing the child to become anxious and insecure, which would not be in the child’s best interests.

Example 3: After the divorce, the father and mother still live close to each other. However, the mother is a “workaholic” who often leaves for work at 7am and does not get home until 10pm, and often has to attend business events on weekends. The father, on the other hand, has steady working hours — no “996” — a fixed nine-to-five with no overtime, and can devote himself fully to caring for the child on weekends. Because one parent is simply too busy, allocating equal time between the parents is neither reasonably practicable nor in the child’s best interests.

The court’s decision

In this case, because Sydney and Mount Isa in Queensland are so far apart, the court held that giving the child equal time with each parent was not practicable. Since the father was unwilling to give up his job opportunity and was adamant about staying in Mount Isa, equal time could only be achieved if the mother agreed to move to Mount Isa. However, Mount Isa is relatively remote — rental housing is hard to find, and the mother’s employment prospects there were limited. Moving to Mount Isa would significantly reduce her and the child’s quality of life. By contrast, in Sydney the mother had strong employment with a higher income, and her flexible working hours also allowed her to spend better-quality time with the child. Moving to Mount Isa would therefore be difficult for her.

On this basis, the court found that although the father and mother should have “Equal Shared Parental Responsibility”, when considering whether they should be given “equal time” with the child, reasonable practicability must also be taken into account. Where the parents live in separate locations and are far apart, giving parents “equal time” with the child may not best serve the child’s interests.

Common misconceptions

In Australia, obtaining sole parental responsibility of a child after divorce is not easy. In most cases, the court takes the view that “Equal Shared Parental Responsibility” will be more beneficial for the child’s development. However, “Equal Shared Parental Responsibility” is easy to misunderstand. Some people assume it means the father and mother will automatically be given equal time with the child. Others, when they hear “Equal Shared Parental Responsibility”, are worried that they will have to hand the child over to the other parent for half of the time, fearing that the other parent may neglect the child and harm their development.

In fact, “Equal Shared Parental Responsibility” does not necessarily mean a 50/50 split of time.

Conclusion

We all hope that every child can grow up healthy and happy. But when a marriage ultimately ends in divorce, we also hope that both parents can continue to provide a stable environment for the child’s development. In Australia, the child’s interests are always given priority. How parental responsibility is allocated, and how much time a parent can spend with the child after divorce, will depend on the specific facts and circumstances of each case.