In 2006 significant changes were made to the Family Law Act dealing with how parenting disputes were determined.
One of the major misconceptions arising out of the changes dealt with equal shared parental responsibility. Section 61DA Family Law Act provides that when a Court is asked to make a parenting order in relation to a child, it must apply a presumption that it is in the child’s best interests for the parents to have equal shared parental responsibility. Some have misinterpreted this to mean a Court having to presume that the children spend equal time with each parent. Some have also suggested that equal shared parental responsibility means to a parents right for the children spend equal time with each of them. These are both incorrect.
The Family Law Act does not set out or create any “rights” for parents. Rather it says parents have authority to make decisions about their children, and responsibilities in relation to them.
Equal shared parental responsibility refers to the parents being responsible for making decisions about the long term issues concerning their children in consultation with one another.
The Family Law Act sets out a methodology to determine what is in the best interests of a child when the parents are in dispute about the parenting arrangements. A Court is required to apply a methodology prescribed by the Family Law Act. This may include considering whether a child spending equal time with each of the parents is in the child’s best interests, and whether the child spending equal time with each of the parents is reasonably practicable. This does not mean that the Court must make an Order that a child spend an equal amount of time with each of the parents.
When having regard what is in a child’s best interests, a Court is required to consider various factors set out in Section 60CC of the Family Law Act.
The emerging social science research indicates that an equal time arrangement will only work in a minority of cases where the parents are genuinely committed to placing the child’s needs first and to making an equal time arrangement work. The parents must put aside any self-interests, and be able to effectively and co-operatively communicate with one another and be flexible about their commitments and the arrangements for their children.
Not surprisingly, in cases where there is ongoing inter-parental conflict, where there has been some types of family violence, or where there are very young children forming their primary attachments, an equal time arrangement is unlikely to work and can lead to serious consequences for the child later in life.
Social science research also indicates that an equal time arrangement for a child can be somewhat disruptive to a child’s development. Children require stability, predictability, a regular routine, and an identified home base. It is therefore a more commonly determined outcome that children have a primary home base and spends significant amounts of time with the other parent.
Determining what it is in a child’s best interest is never an easy task, and can only be determined on a case by case basis. Outside of the Court process, which should only ever be initiated as a last option, parents are encouraged to resolve parenting issues focussing on the needs of their children through the mediation process and with the benefit of legal advice before embarking upon that process.
For assistance with Family Law matters, phone Dominic Wilson, Managing Partner of Craddock Murray Neumann, on (02) 82684000. We have Family Lawyers who are certified by the Law Society of New South Wales as Accredited Experts in Family Law.