There is a presumption that it is in the best interests of the child for the court to make an order for equal shared parental responsibility.
What it is
Equal shared parental responsibility means that parents have to consult each other and agree on decisions about “major long-term issues” such as (s 65DAC):
• the child’s education (both current and future)
• the child’s religious and cultural upbringing
• the child’s health • the child’s name
• changes to the child’s living arrange ments that would make it significantly more difficult for the child to spend time with a parent.
This does not include a parent’s decision to form a new relationship (s 4).
What it is not
The Act makes it clear that equal shared parental responsibility does not refer to the amount of time the child spends with each parent.
Equal shared parental responsibility is only about major long-term issues, not day-to-day issues such as what the child eats or wears. The person with whom the child is staying at the time would normally make those decisions.
Where there is child abuse or family violence
The presumption for equal shared parental responsibility does not apply in cases of child abuse or family violence (s 61DA(2)).
Where the presumption can be rebutted
The presumption can be rebutted if it can be proved it is not in the best interests of the
child for there to be equal shared responsibility.
Interim orders
When considering making interim orders there are some cases where it may not be
appropriate to apply the presumption be cause there is not enough evidence to make a decision.
The presumption does not have to be applied when an interim order is made if it is not appropriate in the circumstances.
The attitude of the courts
Judges have a lot of power to interpret the facts of each case, and different judges may come to different conclu sions on the basis of similar facts. In addition to the high cost of litigation, both financially and emotionally, this uncertainty is a good reason why it is often best for all concerned to reach an agreed settlement about the children.
Status quo
Courts used to be reluctant to remove a child from an established situation and the longer the arrangements continued, the harder it was to get them changed. However, since the changes to the law in 2006 and the case of Goode & Goode [2006] FamCA 1346, a well- settled environment and the length this has been in place may be a consideration, but it will not be enough on its own to warrant the situation continuing.
Siblings
The court is reluctant to split up the children in a family – it is not a case of each parent getting some of the children (Mathieson [1977] FLC 90-230). The situation may be different if the children were separated while they were young and have been apart for a long time (Hayman [1976] FLC 90-140).
Standard orders
There are no standard orders for children after separation. Equal time with each parent is not the default arrangement, nor is alternate weekends and half the school holidays with the father. The court must decide what are the best arrangements for the child using the decision-making pathway outlined at [26.670].
Common misconceptions
There are many misconceptions about how the court decides cases involving the care of children. Some of them are discussed below.
My ex left the kids, so s/he can't have them
This is wrong. A person may have left the children behind for any number of reasons. They may have left in a crisis, or may not have had suitable accommodation for the children. The court will look at whether or not the parent is able to care for the children, regardless of who left the marital home. If a parent has been out of the children's life for a long time, they will need to re-establish a relationship with the children before spending lots of time alone with them, especially if the children were young when they left.
Women always get the kids
Some men believe that they have little chance of obtaining an order for the children to live with them and that the Family Court is biased in favour of women. The last reported Court's statistics [2010-11] show that judges made orders for children to spend a majority of their time with their mother in only 62% of cases. The vast majority of separating couples do not seek parenting orders. Since women generally take most of the responsibility for children's upbringing as primary carers, they often continue in this role after separation, by mutual agreement.
The separation was my ex's fault, so s/he doesn't deserve the kids
As with divorce, the question of who was at fault in the breakdown of the marriage is not relevant to a court decision about where children should live unless the parent's behaviour affects the children.
The courts consider that people's lives are generally their own business, and that it is usual for separated or divorced people to re-partner.
My ex got the kids so I don't have to give her/him anything else
Children are not property to be traded. It is the respon sibility of parents to support a child unless there is a court order that says otherwise. Property entitlements are decided on the basis of past contributions and future needs. The court will not look favourably on a parent who wants to increase the amount of time a child spends with them so they can pay less child support. I am entitled to 50:50 equal time
No one has a right to spend time with a child. The court will look at what is in the child's best interests and issues of practicality.
For shared care to work there generally needs to be a high level of co-operation between the parents. The types of cases that get to court are often not suitable
for a shared care arrangement. Cases that go to court usually involve issues of complexity such as violence, abuse, mental health problems, geographical distance or high levels of conflict. The last reported Court statistics [2008-09 to 2010-11] show that only 10-15% of cases decided by a judicial officer and 18% of cases settled by consent involved equal time with each parent.
Arrangements for 50:50 time are much more common where parents do not go to court at all, either because of misconceptions about having a “right” to equal time or because the parents post-separation relationship is good enough for shared care to work.
Shared care works well for some families, allowing children to have a strong relationship with both parents.