When the Family Law Amendment (Shared Parental Responsibility) Act 2006 commenced in May 2006, the phrase “presumption of equal shared parental responsibility” was introduced as a concept in the Act. It has attracted a lot of publicity both in relation to what it actually means (i.e. does it mean a presumption of ‘equal time’?) and the effect of the new law on children.
The presumption in fact requires major decisions for the long-term care and welfare of the children to be made jointly. These “major decisions” revolve around issues such as education, religion and medical treatment. One of the most significant misconceptions arising from the introduction of the presumption is the belief that “equal shared parental responsibility” translates into an “equal shared care” arrangement for the children of separating parents.
This is not necessarily the case. Whilst the Act requires the Court to consider an arrangement whereby the children spend equal time with both parents, it is not the fixed outcome. In its deliberation about such an arrangement, the Court must consider firstly, whether it is in the best interests of the child and secondly, whether it is reasonably practicable. If the Court decides that an equal shared care arrangement is inappropriate, they must then consider whether one parent spending ‘substantial and significant time’ with the children is more appropriate.
Every family is different, and every situation is different. Nonetheless, when there is an application before the Court regarding the living arrangements for children, each situation is considered against a discretionary checklist provided for in the Act. The checklist of what is in the best interests of the child is long and involved. Some of the factors include:
- The benefit to the child of having a meaningful relationship with both parents;
- The need to protect the child from physical or psychological harm or from being subjected to, or exposed to, abuse, neglect or family violence;
- Any views expressed by the child;
- The child’s relationship with each parent and other persons of significance, for example, grandparents;
- The willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent;
- The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either parent, siblings or other relatives of significance with whom the child has been living;
- The practical difficulty and expense of a child spending time with and communicating with a parent;
- The capacity of each parent and other significant persons to provide for the child’s emotional and intellectual needs;
- Any family violence;
- The extent to which each parent has fulfilled or failed to fulfil their responsibility as a parent, including whether the parent has taken the opportunity to spend time and communicate with the child and participated in making decisions about major long-term issues regarding the child.
Most recently it has been announced that the Institute of Family Studies will conduct a review of the Family Law Act and the Shared Parenting laws. Professor John Wade, the current Chairman of the Family Law Council has said that the 2006 Act which was designed to give children access to both their parents after divorce was incoherent, “filled with gobbledegook” and fails to give judges “the clear signals they need to make good decisions”. He went on to observe the current law created false expectations for fathers who believe the amendments to the Act would guarantee them equal time with their children.
Although the Shared Parenting laws do not provide for such a presumption there has been some criticism of them on the basis that they do not give decision makers sufficient guidance on when it is appropriate to order a shared parenting arrangement and when it is not. Professor Patrick Parkinson, formerly the Chairman of the Family Law Council, has recently said “There have been some cases where children under the age of two are doing week-about and often travelling long distances…..young children do well with frequent time with both parents, but it is important to avoid long separations from the primary care giver. If you have a Mum and Dad living around the corner frequent short visits are possible”.
No doubt when the Institute of Family Studies conducts its review there will be a number of influential lobby groups who will be seeking to provide submissions to it. There is much discussion as to whether the amendments made in 2006 were more concerned about parents’ rights rather than the effect of the care arrangements made pursuant to the new laws upon the children.
What is clear from a review of the decisions made by the Court in cases where the care arrangements for children after separation are disputed is that it is difficult to predict what sort of care arrangement will be ordered given the largely discretionary regime under which Judges are operating. At Consensus we aim to assist our clients through their separation with dignity and discretion without the necessity to resort to Court proceedings. We offer a number of child-focussed processes through which couples can negotiate arrangements in relation to their children. What this means for each couple is different. Learning to create a parental alliance after separation is difficult and challenging and far more so if the parents are caught up in a adversarial court process.