Parents who are unable to reach their agreements about post-separation
parenting are required to participate in FDR. Along with the defined process established by the particular FRC, parents are also required to meet obligations set by the AGD for participation in FDR. Although there have been numerous changes, parents are required to understand the term ‘shared parental responsibility’ and be aware that, under the current law, each parent has a responsibility for their children unless otherwise provided for by a court order.
Amendments to the Family Law Act 1975 (Cth) made by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) have introduced a presumption of ‘shared parental responsibility’, although this presumption does not apply to parents who have engaged in domestic violence or child abuse. Research conducted by Bagshaw et al. (2010) revealed a high level of confusion for parents about the differences between ‘shared parental responsibility’ and ‘shared care’. Under the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth), anyone who is the parent of a child under the age of 18 is said to have ‘parental responsibility’ for that child, irrespective of parental relationship changes such as separation, divorce or remarriage. Parental responsibility relates to the legal duty, power, responsibility and authority a parent has in relation to their child or children. As a result of having parental responsibility, parents are responsible for all decisions about their children, including
amendments, and in the absence of a court order, both parents have equal shared parental responsibility for their children.
Underpinning the concept of shared parental responsibility is the need for parents to work cooperatively regarding the needs of their children and to share the responsibility of raising children equally. Therefore, it is expected that parents will make a genuine effort to consult with and work with each other regarding major long- term decisions concerning their child. Part of preparing parents for FDR is ensuring that parents understand that shared parental responsibility is different from ‘equal time’. Parents will only spend equal time with a child where they agree to that arrangement or where a court finds that equal time is in the best interests of the child and is the most suitable arrangement in the particular situation. Given the paucity of focused research in this area, even when parents do understand the difference between the terms, the extent to which shared care arrangements remains durable is uncertain (Wilcox, 2012).
Parents are also expected to have a meaningful relationship with their children. Although intuitively attractive as an idea, there remain some questions about the precise meaning of the term (Trinder, 2009). ‘Meaningful relationship’ is an important
conceptual breakthrough in family law—the term is not defined in the act, nor are guidelines given as to how parents should have a meaningful relationship with their children. The Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) is in accordance with the United Nations Convention on the Rights of the Child, which affirms the rights of the child to enjoy an ongoing relationship with both parents (Moloney, 2014). From the child’s standpoint, meaningful relationships are primarily about parental attunement and the flexibility and emotional security that this brings, and less about processes principally aimed at determining or agreeing upon parcels of parenting time (Moloney, 2014).
Parents are also required to be mindful of the paramount consideration—the ‘child’s best interest’. Although the act sets out in section 60CC the matters in which the court may consider what is, in fact, in a child’s best interest, the court does not determine or mandate a child’s best interest. As a principle, the best interests of the child is so broad in meaning as to be ambiguous—it is, in fact, difficult to determine what a child’s best interests are (Chisholm, 2009) or to interpret exactly what is in a child’s best interest (Bagshaw et al., 2010). An alternative view is that every child’s position should be assessed individually and should not be constrained by a rigid view of his or her best interests (Chisholm, 2009). It should be noted that Chisholm is reporting about decisions made in family law courts; however, his recommendations could equally be applied to all family law service provision (Wilcox, 2012). While both idealistic and laudable, predicting the best arrangements for children may be impossible in practice (Lundberg & Moloney, 2010). Even so, when reaching agreements in FDR, parents are required to consider the best interests of their children when developing a parenting plan.
Parents are expected to make what is termed ‘a genuine effort’. Section 601 of the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) requires parents in conflict over arrangements for their children to make a genuine effort to resolve their dispute through FDR or to produce a certificate to this effect before the matter can be listed for trial (Rhoades, Astor, Sanson, & O’Connor, 2008). The genuine effort statement encourages parties to ‘turn their minds’ to resolving disputes before initiating ‘potentially costly litigation’ (Hobbs, 2012, p. 250). According to Astor (2010), the following efforts are needed to show a genuine effort in FDR: ‘attendance, willingness to consider options, willingness to consider putting forward options and willingness to focus on the needs and interest of the children, to the best of the parent’s
ability’ (p. 63). Parents are required to engage genuinely in prelitigation action (i.e. FDR) or to demonstrate why they have not. However, Hobbs (2012) argues that the exact meaning of this is unclear and Astor (2010) suggests there is difficulty in
interpreting what is actually genuine effort by a parent as their experience is determined by their circumstance. Parents are encouraged and required to think and behave in a way that considers the needs of their children as they prepare for and participate in FDR. Even so, the terminology may be difficult to understand.