Shared Care of Children
In June 2003, the Prime Minister ordered an inquiry into the proposal for a presumption of “equal time shared care” of children of separated couples – shared parenting.
The language of “shared custody” or “shared care” used in the media discussion is misleading in the context of The Family Law Act (“the Act”). The Act separates the traditional concept of custody into:
1. “residence” (ie the person with whom the child lives);and
2. a “specific issues order” dealing with the long term care of the children.
In the majority of residence and contact (formally referred to as access) disputes an order for “shared (or joint) responsibility for the long term care, welfare and development of the child (or children)” is agreed. It is the proportion of time the child (children) will live with each parent that is usually in dispute.
A legal presumption works as a starting point putting the onus on the opposing party to disprove the presumption.
There is a significant difference between:
1. starting with a presumption that shared residence is in the best interests of the child (or children) [ie the subject of the government inquiry]; and
2. inquiring into whether a proposal for shared residence is in the best interests of the child (or children) [ie. the current position under the Act].
The general approach to parenting orders under the Act
The principles underlying the object of the Act dealing with parenting orders include the following:
1. Children have a right to know and be cared for by both parents; and
2. Children have a right of contact on a regular basis with both parents. (section 60B of the Act)
This does not translate to “shared residence.”
The principle overriding the Court’s decision making process in parenting cases is “the best interests of the child.” (section 65E of the Act)
The Court does not approach residence cases on the basis the best interests of the child are met by the parents caring for them an equal amount of time.
The Act sets out the matters to which the Court must have regard in determining the best interests of the child (section 68F(2) of the Act), including “any other fact or circumstance that the Court thinks is relevant.”
The relevant sections of the Act provide that the “bests interests” approach is tailored to the individual child in his or her particular circumstances.
Specific guidance on shared residence
The Court has indicated some factors to consider in cases where one party seeks orders for shared residence including:
1. the parties’ capacity to communicate on matters relevant to the child’s welfare;
2. whether the parties agree on matters relevant to the child’s day to day care;
3. physical proximity of the households; and
4. prior history of caring for the child.
An inability to communicate and continued hostility between the parties may be fatal to a proposal for shared residence. However the Court will always make its decision on the particular situation, aimed at finding the care arrangement that is in the best interests of the particular child.
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