Did you know that if there is a court order for equal shared parental responsibility, either by consent or decision of the court, the court must consider whether the parents should have equal shared care of the children?
How does the Court consider whether parents should have equal shared custody of their children?
How does the Court consider whether joint custody is appropriate?
To consider whether a joint custody order is appropriate, the court must first consider if joint custody is in the best interests of the child and whether it is reasonably practicable to do so.
To do so, the court must consider and take the following steps:
1. Would a child spending equal time with each parent be in the best interests of the child?
2. Is it reasonably practicable for a child to spend equal time with each parent?
3. If the court considers the answer to both questions is yes, then the court can consider making an order that provides for each parent to have equal time with the child.
If the Court does not consider joint custody to be in the best interests of the child or reasonably practicable, the court then must consider and take the following steps:
4. Would a child spending substantial and significant time with a parent be in the best interests of the child?
5. Is it reasonably practicable for a child to spend substantial and significant time with a parent?
6. If the court considers the answer to both questions is yes, then the court can consider making an order that provides for substantial and significant time.
How does the court consider what is in the best interests of the child?
As always, the court will consider the best interests of the child as the paramount consideration. In determining what is in the child’s best interests, the Family Law Act considers the benefit to the child of having a meaningful relationship with each parent and the need to protect the child from being subject to or exposed to harm, neglect, abuse or family violence.
What exactly is substantial and significant time?
This is when a parent spends time with a child on during times that involve the parent being involved in the child’s daily routine and events that are significant to both the parent and child. For example, the child spends each Tuesday evening; alternate weekends with the parent and half of the school holidays.
If the court does not consider an order for substantial and significant time as appropriate, then the court can consider any other time, including professionally supervised time.
How does the court consider what is “reasonably practicable”?
The court looks to a number of factors to consider what time is reasonably practicable. The court must consider the following factors:
• how far apart the parents live from each other
• each parents’ current and future capacity to implement the arrangement
• each parents’ current and future capacity to communicate and resolve any issues that may arise from the arrangement
• the impact the arrangement would have on the child
• anything else the court may consider relevant
It is up to the parent and their solicitor to argue and produce evidence to why or why not equal time or substantial and significant time is not appropriate.
What does the Australian Law Reform Commission say about removing the Court’s requirement to consider joint custody or substantial and significant time with the child?
The Australian Law Reform Commission (‘ALRC’) recommends repealing the requirement for the court to consider equal or substantial and significant time with each parent when an order for equal shared parental responsibility is made.
The ALRC noted that the link between equal shared parental responsibility and the court’s requirement to consider equal time or significant and substantial time, increases a parents’ belief that there is a presumption of equal time. This is not the case.
The ALRC reasoned that repealing the provision would assist in reducing the confusion for parents, particularly the misunderstanding that equal shared parental responsibility incorrectly means a presumption of equal shared time. By repealing the provision, the parents’ focus would be switched from the quantity of time spent with child to the child’s wellbeing.
The ALRC argues that the legislation does not require a separate provision as the amount of time a parent spends with the child as it is already considered when the court determines what is in the best interests of the child.
Instead, the ALRC recommends a detailed guide be made available to parents to assist them in understanding what parenting arrangements may be in the best interests of their child.
Should the requirement be removed?
A major reform of the Family Law Act in 2006 introduced the requirement for the Court to consider whether joint custody is in the best interests of the child and the practicality of it following an order for equal parental responsibility.
The purpose of this requirement was to address the equality issue relating to a father’s time with their child.
Research shows that only 35-45% of separated parents have equal shared parental responsibility, with most separated parents reporting that the decisions are made by the mother. The same can be said for equal-care arrangements with 64% of separated parents reporting that the arrangement is the children reside with their mother and spend time with their father on a regular basis.
Whilst the ALRC advocates that the removal of the requirement may assist in reducing confusion for parents, research shows that parents do not appear to be seeking or relying on a misguided presumption that a court would order equal shared time if the parents received an order equal shared parental responsibility.
Regardless of whether the requirement is repealed, the court must always consider what is in the best interests of the child. It is up to the parents and their legal representation to provide evidence as to what time arrangements are in the best interests of the child. Based on this evidence, the court will make the order with the best interests of the child as their paramount consideration, despite an order for equal shared parental responsibility.
If this requirement is repealed, would it impact on the amount of time fathers spend with their children? It appears unlikely but watch this space.
If you require assistance from a Melbourne child custody lawyer or want to discuss your options, please contact Rowan Skinner & Associates Lawyers. We are LIV Accredited Family Lawyers in Melbourne.
 Australian Law Reform Commission, Family law for the future – An Inquiry into the Family Law System (Report No 135, March 2019), 176-183.
 Rae Kaspiew et al, ‘Experiences of Separated Parents Study’ (Evaluation of the 2012 Family Violence Amendments) (Australian Institute of Family Studies, 2015) 16-20.
By Jessica Coles-Black