Shared parenting
The legislation
Fairly recent changes to the Family Law Act have been designed to bring about a cultural shift in how family separation is managed, moving away from litigation and towards cooperative parenting.
The Family Court and the Federal Magistrates Court now take the approach that both parents have equal shared responsibility for parenting. However, this does not mean that children will spend equal time with both parents.
What has changed?
Parenting orders can deal with the form and extent of consultations parents are to have about decisions made in relation to:
- Exercising joint parenting responsibility;
- Maintenance of children;
- The care, welfare and development of the children; and
- The process the parents will use to resolve disputes where there is a change of circumstances or a disagreement about the terms and operation of the parenting orders.
Before the Family Court can hear an application for a parenting order, subject to a few exceptions, parents are required to complete compulsory family dispute resolution.
If an agreement is not reached as a result of the dispute resolution, and a Family Court application is made, the court must:
- Apply a presumption of equal shared parenting responsibility;
- Have, as its primary consideration, the benefit to children of having meaningful relationships with both parents;
- Consider whether spending equal or substantial and significant time with each parent is in the best interests of the children and reasonably practicable. Substantial and significant time is more than just weekends and holidays, and involves participating in the children's day-to-day activities and includes a mix of night and daytime contact.
The terms "residence" and "contact" have been replaced with "lives with" and "spends time and communicates with".
The effect of the changes
The amendments have had a dramatic effect upon the expectations of the separated parent and this has led to further pressure on parties to resolve matters out of court.
The true impact of the amendments will not be able to be assessed until there is a body of cases defining its terms, in particular what 'consideration' of equal time and 'substantial and significant time' actually means in practice. Until this occurs, litigation outcomes can be uncertain.
To find out more, please contact our Family Law team.