In 2006, following years of research and lobbying by various committees, the Federal Government introduced the Family Law Amendment (Shared Parental Responsibility) Act 2006. This Act established a presumption that children should spend equal time with each parent unless there were very good reasons why they should not, which the Court was obliged to consider in parenting cases.
At the time there was a lot of media coverage and discussion surrounding the impact this new legislation would have on parents and children, and how it would change the way the Court made parenting orders. Many parents expected that if they sought an order for equal time with their children, they would get it. The reality since 2006 has been less earth-shattering than predicted, however there remains an expectation within the community that the Court will grant parents equal time with their children if they ask for it.
Of the reported decisions in 2008in the Federal Magistrates Court(where most parenting cases are heard) in which equal time was sought, only 17% of applicants were successful. There were no reported decisions in the Family Court where equal time was ordered.
Why? The Court has a wide discretion to not order equal time and has refused to do so for reasons such as:
the parents' inability to communicate with one another effectively;
the level of hostility between the parents;
the age of the children (the younger the child, the less likely equal time will be granted);
the physical proximity (or lack of) between the parents' homes and the associated practicality of getting the children to and from school, etc;
the parents' ability to agree on day-to-day matters regarding the children, such as the child's religion, health care, diet, attitude to homework and so on; and
the similarity of rules and discipline between the two households.
The default position when applying for any parenting order is to inform the Court of how terrible the other parent is while highlighting your own strengths. Conversely, parents applying for equal time need to present everything in a more positive light. Any parent who submits evidence that they cannot agree on most things with the other parent is unlikely to be successful in an application for equal time.
The lesson to be learned from all of this is, if you seek equal time with your children, you need to demonstrate considerable maturity, mutual respect, a willingness to cooperate and a capacity to communicate freely with the other parent.
This article provides basic information only and is not a substitute for a professional or legal advice . It is prudent to obtain legal advice from a Family Lawyer when contemplating a separation or soon after a relationship comes to an end. Our family law lawyers members are able to provide you with comprehensive legal advice in relation to the all legal areas associated with separation and divorce, to assist you and your family to move forward.