The term "shared care" typically refers to circumstances in which children children benefit when both of their parents have meaningful involvement in their lives by spending a similar number of nights with each parent.
The Family Law Act 1975 requires a Family Law Court to base decisions about children on certain principles. The overriding principle is that the court must always act in the best interests of the child. The law therefore attempts to ensure that each parent will participate in the child’s life to the maximum extent that is consistent with the child’s best interests.
Parents play a role in their children’s lives in two ways. First, they spend time with their children. Second, they make decisions about their children’s lives.
Recent changes in the law require the court to give careful consideration to allowing parents to share responsibility for making child-raising decisions and to share their time with their children. The current law of shared care is explored in more detail below.
The Family Law Act defines parental responsibility as “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.” Parental responsibility includes providing the child with:
• a safe place to live
• necessary health care
• an adequate diet
• an education
• an upbringing
Each parent of a child has parental responsibility for that child regardless of whether they are married, separated, divorced, in a de facto relationship, or have never married or lived together. Paying child support is not, by itself, a sufficient discharge of parental responsibility.
Parental responsibility includes the power to make decisions about the child, including whether the child will receive elective medical care, whether the child will participate in after-school activities, the religion in which the child will be raised, and other daily decisions about how the child will be raised.
Parents each have the same parental responsibility unless a parenting order allocates a particular responsibility to one parent or the other. For example, when parents cannot agree upon where a child will live, a parenting order might give one parent the responsibility for making that decision.
Parents can also choose to allocate parental responsibility by making a parenting plan. The court must consider the wishes of parents that they have expressed in a written and signed parenting plan if they both entered into the plan voluntarily. If the court must make a parenting order, however, it will follow a parenting plan only if the plan is consistent with a child’s best interests.
When a Family Law Court makes a parenting order, section 61DA of the Family Law Act requires the court to presume that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply if the court is satisfied that either parent has engaged in child abuse or family violence.
The presumption that parental responsibility should be shared equally can be overcome by evidence that it would not be in the child’s best interests for the parents to share that responsibility. Evidence that the parents are incapable of working together or that one parent always puts his or her needs ahead of the child’s needs might persuade a court that shared parental responsibility would not be good for the child.
The presumption of shared parental responsibility applies to making decisions about the child. It does not apply to the court’s decision about the amount of time the child should spend with each parent. However, when parents are given shared parental responsibility they are more likely to be given equal or substantial time with the children, if it is practical to do so. The issue of sharing time with children is addressed below.
When a Family Law Court makes a parenting order that provides for shared parental responsibility, section 61DA of the Family Law Act requires the court to:
• consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
• consider whether the child spending equal time with each of the parents is reasonably practicable; and
• if it is, consider making an order to provide for the child to spend equal time with each of the parents.
Given the principle that each parent should participate in the child’s life to the maximum extent that is consistent with the child’s best interests, courts will likely agree that it would be in a child’s best interests to spend equal time with both parents if that is what the parents want. Practical barriers to equal time arrangements are discussed below.
Equal time sharing can be accomplished in different ways. Children might move from one household to the other at the end of each week or each month. Children might spend six months with one parent and six months with the other. How to schedule equal time with both parents will depend upon the circumstances of the child and of the parents.
If parents would like to have equal time with their children, they can decide upon a schedule and make it part of a parenting plan or they can apply for a consent order. The court will likely approve their agreement and enter it as a consent order unless the court has reason to believe that the equal time agreement would not be in the best interests of the children.
Substantial and significant time includes:
• time on weekdays, weekends, and holidays;
• time that allows a parent to be involved in the child’s daily routine;
• time that allows a parent to be involved in significant occasions and events in the child’s life (such as birthdays); and
• time that allows a parent to share significant events in the parent’s life with the child.
The practical barriers discussed below apply to an award of substantial and significant time. The court must weigh and account for those practical objections.
Courts encourage parents to agree upon a schedule that gives them each substantial and significant time with the children. Parents must usually enlist the help of a mediator to work toward an agreement before applying to the court for a parenting order.
Courts recognise that there are often practical barriers that prevent it from awarding equal time or substantial and significant time to each parent. Courts must consider:
• how far apart the parents live from each other;
• the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents;
• the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind;
• the impact that an arrangement of that kind would have on the child; and
• such other matters as the court considers relevant.
Common barriers to shared care include:
• Family violence or child abuse.
• Unresolvable conflicts between the parents.
• Distance and transportation difficulties.
• Financial problems.
• A parent’s mental health issues.
Practical barriers to shared care are not easy to overcome. More than half of all parenting orders provide for children to spend most of their time with one parent. Shared care arrangements are most often ordered when parents are able to work together and agree upon a shared care plan.