When the Family Law Amendment (Shared Parental Responsibility) Act 2006 commenced in May 2006, the phrase "presumption of equal shared parental responsibility" was introduced as a concept. Since that time, it has continued to attract a lot of publicity both in relation to what it actually means (i.e. does it mean 'equal time'?) and the effect of the law on children.
One of the most significant misconceptions arising from the introduction of the presumption is the belief that "equal shared parental responsibility" translates into an "equal shared care" arrangement for the children of separating parents.
The presumption in fact requires major decisions for the long-term care and welfare of the children to be made jointly. These "major decisions" revolve around issues such as education, religion and medical treatment.
Every family is different, and every situation is different. Nonetheless, when there is an application before the Court regarding the living arrangements for children, each situation is considered against a checklist provided for in the Act. The checklist of what is in the best interests of the child is long and involved. Some of the factors include:
- The benefit to the child of having a meaningful relationship with both parents;
- The need to protect the child from physical or psychological harm or from being subjected to, or exposed to, abuse, neglect or family violence;
- Any views expressed by the child;
- The child's relationship with each parent and other persons of significance, for example, grandparents;
- The likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from either parent, siblings or other relatives of significance with whom the child has been living;
- The practical difficulty and expense of a child spending time with and communicating with a parent;
- The capacity of each parent and other significant persons to provide for the child's emotional and intellectual needs;
- Any family violence;
- The extent to which each parent has fulfilled or failed to fulfil their responsibility as a parent, including whether the parent has taken the opportunity to spend time and communicate with the child and participated in making decisions about major long-term issues regarding the child.
What is clear from a review of the decisions made by the Court in cases where the care arrangements for children after separation are disputed is that it is difficult to predict what sort of care arrangement will be ordered given the largely discretionary regime under which Judges are operating. Some of the established and experienced family lawyers in Australia aim to assist the clients through their separation with dignity and discretion without the necessity to resort to Court proceedings. They also offer a number of child-focussed processes through which couples can negotiate arrangements in relation to their children. What this means for each couple is different. Learning to create a parental alliance after separation is difficult and challenging and far more so if the parents are caught up in an adversarial court process.