In 2006 significant amendments were made to the Family Law Act dealing with children’s issues after the separation of parents.
One of the major misconceptions arising out of the amendments dealt with equal shared parental responsibility. Section 61DA 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 for the child. Some people have misinterpreted this to equate to a Court having to presume that the children spend equal time with each parent. Some people have also suggested that equal shared parental responsibility equates to a right amongst parents to insist 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” on the part of parents. Rather it provides that 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 goes on to set out a methodology to determine what is in the best interests of a child when the parents are in dispute about the parenting arrangements. If the parents cannot agree upon with whom the child is to live, or what amount of time a child is to spend with each parent, then a Court is required to apply the legislative pathway 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 there is a low level of conflict and 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 a degree of conflict, a child spending equal time with each of the parents is unlikely to work.
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.
The Commonwealth Government has announced a review of the 2006 amendments to the Family Law Act prescribing the legislative pathway requiring an examination of whether an equal time arrangements will be in a child’s best interests.
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