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shared care

Contact Armstrong Legal:
Sydney: (02) 9261 4555
Melbourne: (03) 9620 2777
Brisbane: (07) 3229 4448
Canberra: (02) 6288 1100

Michelle McDermott

As a result of recent amendments to the Family Law Act, the Court must examine, in all parenting cases, whether or not equal shared parental responsibility is appropriate. There is also a particular obligation under certain circumstances to consider "equal time". In circumstances where equal time is not appropriate, the Court was then obliged to consider "substantial and significant time" arrangements. These arrangements are subject to the Court considering it in the children's "best interests".

The presumptions and obligations referred to in the paragraph above are able to be displaced in circumstances where the Court finds there has been family violence. The Chief Justice of the Family Court has said "it is those very cases that will be dealt with by the Family Court " cases of violence, abuse and entrench conflict, which will, by their nature, be less likely to lead to cooperative parenting that the government wants parties to have the kind of orders that would support them".

Presumption of equal shared parental responsibility (shared care)

The presumption favour of equal shared parental responsibility provides the Court with a starting point creating obligations on both parents to consult each other and reach agreement on long term issues to deal with the children. Some of the issues that are considered to be long term issues include:

  • Education and choice of school;
  • Religious upbringing;
  • Health decisions; and
  • The child's name.

The presumption of equal shared parental responsibility does not apply if the Court finds that there has been family violence and it would not be in the child's best interests.

Obligation for the Court to consider shared care

If the Court is satisfied that an order should be made for equal shared parental responsibility and it also must consider whether or not it is in the best interest of the children to spend equal time with each parent or whether or not such an arrangement is reasonably practicable. If the Court does not make an order for equal time, it must then consider whether or not it is in the children's best interests to spend substantial and significant time with each of their parents. If it does not, it must clearly explain why.

The best interests of children

The best interests of children is still a paramount consideration when the Court makes parenting orders. In determining the children's best interests, it must have regard to the factors set out in Section 60CC of the Family Law Act 1975.

This section provides two primary considerations which are:

  • The benefit of the child having a meaningful relationship with both parents; and
  • The need to protect the children from physical and psychological harm.

There are additional considerations which are:

  • Any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
  • The nature of the relationship of the child with:
    • Each of the child's parents; and
    • Other persons (including any grandparent or other relative of the child);
  • The willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
  • The likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
    • Either of his or her parents; or
    • Any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
  • The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
  • The capacity of:
    • Each of the child's parents; and
    • Any other person (including any grandparent or other relative of the child);
    • To provide for the needs of the child, including emotional and intellectual needs;
  • The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
  • If the child is an Aboriginal child or a Torres Strait Islander child:
    • The child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
    • The likely impact any proposed parenting order under this Part will have on that right;
  • The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
  • Any family violence involving the child or a member of the child's family;
  • Any family violence order that applies to the child or a member of the child's family, if:
    • The order is a final order; or
    • The making of the order was contested by a person;
  • Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
  • Any other fact or circumstance that the court thinks is relevant.

Statistics on shared care

Statistically since the implementation of the shared care amendments to the Family Law Act 15% of cases determined by the Court have resulted in an order for shared care and 19% of cases resolved by consent have resulted in an order for shared care. Many more cases involved one of the parents receiving between 30 and 45% of time while living predominately with the other parent.

The main reasons for the Court ordering the children spend less than 30% of time with of the parents included:

Abuse and family violence 29% (father's) 16% (mother's)
Entrenched conflict 15% (father's)
Distance / Transport / Financial Barriers 6% (father's) 16% (mother's)
Relocation 5% (father's) 7% (mother's)
Substance abuse 4% (father's) 7% (mother's)
Mental health issues 31% (mother's)

If you would like to speak to one of our solicitors regarding shared care, please do not hesitate to call us or, send us an email by clicking on the appropriate button on the right hand side at the top or bottom of this page.

where to next?

Taking the next step and contacting a family lawyer can be scary. Our lawyers will make you feel comfortable so you can talk about your situation. But first, ask yourself, Do I really need a lawyer?

Why Choose Armstrong Legal?

Contact Armstrong Legal:
Sydney: (02) 9261 4555
Melbourne: (03) 9620 2777
Brisbane: (07) 3229 4448
Canberra: (02) 6288 1100

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