Shared parenting laws have hit the headlines recently. These controversial laws came into effect in mid-2006 when the Howard government passed amendments to the Family Law Act 1975, and are currently under federal review. Despite (or perhaps because of) media attention, there are some common misconceptions about how these laws operate.

One perception is that fathers will be disadvantaged by an erosion of the current shared parenting laws and will be unfairly excluded from their children’s lives. Unfortunately, this stance does not acknowledge the many different factors considered when making parenting orders for shared parental responsibility and shared care parenting arrangements.

Changes to the Family Law Act

The changes that were made to the Family Law Act in 2006 introduced a presumption of ‘shared parental responsibility’ for children.

Parental responsibility was not a new concept, and has always existed in some form under the Family Law Act. Shared parental responsibility refers to the ability of parents to make decisions about the long-term care, welfare and development of a child, including decisions about education, religious instruction and medical treatment.

The provisions inserted into the Act in 2006 provided the assumption that both parents will have equal shared responsibility for a child, unless there is a valid reason to rebut this. This presumption can be rebutted by a history of domestic violence, family violence, or a serious dispute between the parties which makes it difficult to communicate with each other or make decisions regarding the care, welfare or development of a child.

If a Court makes an order for shared parental responsibility, this does not automatically mean that the child will have to spend equal time with both parents. Instead, it means each parent will have a say in the decisions that need to be made for that child.

Determining how a child will spend time with parents

The Family Law Act refers to the best interests of a child being met by ensuring that:

• Children have the benefit of both of their parents having a meaningful involvement in their lives (as much as possible to be in the best interests of the child);
• Children are protected from physical or psychological harm, or from being subjected to or exposed to abuse, neglect or family violence;
• Children receive adequate and proper parenting to help them achieve their full potential; and
• Parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children.

The Act refers to the rights of children to know and be cared for by both of their parents, and to spend regular time with them. It also provides for parents to have responsibility for their children’s care, welfare and development. There are a number of factors under the Family Law Act that the Court must consider to determine what is in the best interests of a child.

The Act says that the Court has to consider a child spending:

• Equal time with his or her parents; or
• Substantial and significant time with his or her parents in the event that equal time is not reasonably practical; or
• Time that is in the best interests of the child in the event that equal or significant time is not reasonably practical.

When making an order for equal time, the Court has to consider if it will be in the best interests of a child to spend equal time with each parent, and whether spending equal time with each parent is practical. In doing so, the Court must take into account the facts and circumstances of each individual case.

Family Law cases cannot and should not be generalised. The Court must thoroughly examine the facts and circumstances of each case before it determines if equal time is in the best interests of a child and is practical. If the Court decides that equal time is not practical, it must consider whether significant or substantial time is appropriate. Significant and substantial time includes time on weekends, during the week (including overnight stays) and during school holiday time.

Some comments we have seen in the media fail to take into account that a Court must look at evidence and make determinations that uphold the principles and philosophy of the Family Law Act:

• The age and circumstances of children, particularly where they are very young, may not lead a Court to determine that it is in the best interests of a child to spend equal time with both parents. For instance, where children are very young and have a strong attachment to their primary carer (often their mother), a shared or equal time arrangement may not be practical. Equal or shared care parenting arrangements are often easier to manage when children are older (eight years and above) and are better able to cope with this arrangement.
• Some of the generalisations made in the media do not take into account genuine cases of domestic violence or family abuse, situations where parents do not live in close proximity to one another, or situations where the relationship between the parties has broken down to such a degree that there is a serious dispute and poor communication between parents.

A number of statistics have been quoted in the press, including an Australian Institute of Family Studies report’s finding that only 16 percent of children whose parents had separated between July 2006 and September 2008 had shared care time arrangements in place. While this may be the case, Courts making decisions under the present Family Law Act must take into account the rules in the Act and apply those to circumstances in each case.

Judicial officers must exercise discretion to make sure that the parenting orders they make are in the best interests of a child, as determined by the principles set out in the Act. It may well be that only a small percentage of cases are suitable for shared care arrangements, and in particular, equal time arrangements. Despite assertions by some industry participants that equal time arrangements should be mandatory, judicial officers should have the discretion to consider the facts and circumstances of each case, and not have their independence interfered with in an attempt to treat every case the same.

We have previously seen in Australia that mandatory sentencing laws take away judicial discretion. Taking a legislative ‘broad brush’ to all family law cases could affect the best interests of children and remove the decision making power from those who know and understand the situation and circumstances of a particular family.

For more information on shared parenting laws, please contact HopgoodGanim's Family Law practice.

Geoff Wilson, Partner
Andrew McCormack, Associate