Post 2006 Shared Parenting Reforms: Where are we now?

In 2006 the then Howard government passed significant amendments to the Family Law Act 1975 with the introduction of the Family Law Amendment (Shared Parental Responsibility) Act 2006.

The amendments were introduced to promote and encourage the concept of co-parenting children after separation in Australia, including a mandatory consideration of equal time arrangements in certain circumstances.

Whilst equal time arrangements do work for some separated families, for other children the compromise of sharing time between each parent after separation is not ideal.

In accordance with section 60CA of the Family Law Act the paramount consideration when making a parenting order is the best interests of the child.

The primary considerations in determining the best interests of the child are:

• The benefit to the child having a meaningful relationship with both parents (section 60CC(2)(a)); and

• The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (section 60CC(2)(b)).

• In applying the primary considerations, greater weight is to be given to the need to protect the child from harm (section 60CC(2A)).

There are also a number of additional considerations the Court can have regard to when making a parenting order in the best interests of children (section 60CC(3)) including but not limited to:

• The views of the child (section 60CC(3)(a))

• The nature of the child’s relationship with each parent and other family members (section 60CC(3)(b)

• The maturity, sex, lifestyle and background of the child and parents (section 60CC(3)(g)

• The attitude to the child, and to the responsibilities of parenthood, demonstrated by the child’s parents (60CC(3)(i))

• Any family violence involving the child or a member of the child’s family (60CC(3)(j))

• If a family violence order (DVO) applies, or has applied, to the child or a member of the child’s family. (60CC(3)(k))

• Whether it would be preferable to make an order that would be least likely to lead to the institution of further proceedings in relation to the child (60CC(3)(L))

As part of the 2006 amendments, when making a parenting order the Court must apply the presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility in relation to major long-term decision making for the child (section 61DA).  The presumption can be rebutted if there has been child abuse, domestic violence or where it would not be in the best interest of the child. Examples of major long-term decision making include:

•  EDUCATION – for example what school the child will attend private or public.

• RELIGIOUS or CULTURAL upbringing – e.g. whether the child should be baptised or follow a certain religious calendar.

• HEALTH – e.g. whether the child should be immunised, undergo a surgical procedure or whether the child can attend on a psychologist for treatment.

It is important to bear in mind at this point if you are a parent who is subject to a parenting order where there is an order for Equal Shared Parental Responsibility (also known as Joint Parental Responsibility) that it will be a serious contravention of the orders to make a unilateral decision for the child in relation to a long-term parenting issue without the consent of the other parent.

Where the Court applies the presumption of Equal Shared Parental Responsibility and it has not been rebutted then the Court must give consideration to making an order for equal time so long as it is both in the best interest of the child and reasonably practical (section 65DAA). 

If the Court does not make an order for equal time then the Court must then consider making an order for substantial and significant time, which includes time on the weekends and during the week to allow both parents the opportunity to participate in the child’s daily routine. (section 65DAA(2)&(3)).

In practice there has been criticism of Judges who are too readily ordering week-about even where neither parent has sought this type of arrangement. On the other hand, there is criticism of other Judges who are hesitant to order equal time arrangements and resist on the basis of preferring one parent being the primary carer.

Judges who make orders for equal time arrangements can be forgiven for the little time they do have to make decisions on any given day which is always overly busy at the family law courts.

After all it was King Solomon who was left in the unfortunate position of having to try and determine the custody of a child and in coming to a decision without the modern advancements of DNA testing, suggested he simply take a sword, cut the child in two pieces and then give half to each party.

However, making an order for equal time should not be a compromise by the Judge and the focus needs to be on the individual needs of the child. Likewise, where both parents can facilitate an equal time arrangement and it accords with the best interests of the child, then the Court should make orders accordingly.

SO WHERE ARE WE NOW?

In practice, the 2006 shared parenting amendments have opened the door and made it easier for parents seeking equal time arrangements for their children. The days of one parent being awarded full custody are long gone, however, equal time arrangements are certainly not the norm either.

Parents who are not ultimately successful in achieving an equal time arrangement are more likely to spend substantial and significant time with their children, which can include extended weekends (such as Friday afternoon to Monday morning) and overnights during the school week and for half of the school holidays.

Proponents against the 2006 amendments (mostly advocates for women) argue that the shared parenting regime has exposed children unnecessarily to parenting by perpetrators of domestic violence. Whereas those that support the amendments argue that the 2006 amendments have been successful in achieving a balance in post separation parenting arrangements from a contemporary perspective in modern day Australia.

Whilst equal time arrangements do work well for a lot of children, the motivations of some parents to have majority care of the children or an equal time arrangement is too often financially based and ignores the reality for the children.

It seems that in order for our children and the future generations to prosper, there needs to be greater emphasis on reform to the child support system to remove the focus from the financial implications of raising children back to their best interests.

Michael Kilmartin is a family lawyer and legal practitioner director of Kilmartin Legal.