What does Shared Parenting really mean?
The Court's powers to make Parenting Orders is set out in Division 6 of the Family Law Act.
Joint Decisions
As a starting point, section 65D directs the Court to assume that “equal shared responsibility” applies. This means that parents are required to share in making the decisions regarding their children. Normally, long term decisions are made jointly with each party having the “sole responsibility” of making day to day decisions when the children are in their care.
The presumption of "equal shared responsibility" may be rebutted. In other words, the Court may find situations where it would not be appropriate to permit equal shared responsibility. However, those situations are the exception rather than the rule.
Equal Time
If the Court believes that equal shared responsibility is appropriate then it is required to consider whether it would be in the best interests of the children to spend equal time with each parent. Generally, equal time means that the children spend roughly half of the time with each parent. It does not mean an exact mathematical calculation of hours and minutes.
Substantial and significant Time
In situations where it is not appropriate to have an approximate division of time (for example 7 days with each parent in a fortnightly cycle) then the Court must consider making orders of the children to spend substantial and significant time with each parent.
Factors which the Court must consider
The Court cannot simply make a decision out of thin air. It is required to look at a number of issues in determining whether equal time is appropriate or whether substantial and significant time is appropriate or whether only very limited time is appropriate.
Theses factors are set out in Section 65DAA(5) and most of them are logical considerations:
(a) How far the parents live apart from each other;
(b) the parents' current and future capacity to implement an arrangement where the children
spend either equal or at substantial and significant time with each parent;
(c) the parents' current and future capacity to communicate with each other and to resolve
difficulties which may arise;
(d) the impact the arrangement will have on the children;
(e) any other matters the Court believes is relevant.
Statistically, only a very small percentage of families meet all of the above criteria. For example, if the parents live a long distance apart then it may be impractical for the children to spend equal or even substnatial and significant time with each parent because of the significant travelling involved.
If parents are unable to communicate or co-operate with each other then the potential of failure in any joint parenting arrangement will be high. Unfortunately, the failure or inability to communicate is a symptom of relationship breakdown. That fact that parents are unable to work with each other (after all that is probably why the relationship failed) is not surprising however in most cases, it is that very inability to work with each other for the benefit of the children which will create an impediment to the Court making any kind of shared parenting arrangments.
Remember, the Court's overriding duty is to ensure that the children's best interests are served so the Court will always look at your proposals from the children's view point rather than your view point and simiarly, this applies to the otherside's proposals too.
The above is not legal advice and is only a brief summary of a complex area of Law. You must seek legal advice which is appropriate to your particular and specific circumstances.
Contact us to arrangement an appointment with one of our Lawyers.
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