Myths and Misconceptions About Shared Parenting Laws – JewishCare’s Role in Family Dispute Resolution
In 2006 the Howard Government introduced changes to the Family Law Act with respect to how parenting disputes would be dealt with. This followed an inquiry into parenting laws under the Family Law Act, namely “Every Picture Tells a Story”. Academics, legal groups and interest groups in society gave evidence at this inquiry.
The changes to the Family Law Act in 2006 were intended to achieve better results for children whereby:
- Each parent would have a more significant and meaningful relationship with their children post separation;
- Each parent would consult with the other in respect of decisions concerning long term issues about their children;
- There was to be a focus on alternative dispute resolution to help separated couples sort out post-separation parenting arrangements, without resorting to litigation.
One of the major changes included a methodology in the Family Law Act that a court would follow if it was asked to determine a parenting matter.
In any parenting matter that came before a court, it would be required to apply a presumption of equal shared parenting responsibility, unless it was contrary to the best interests of the child.
There was some misunderstanding or misconception about what this actually meant, and this continues today. Some people in society equated equal shared parental responsibility with some new right that each parent would be entitled to have their children in their care for an equal amount of time. Nothing could be further from the truth. Equal shared parental responsibility does not refer to any so called rights of the parents in respect of their children. The reality is, the Family Law Act does not talk about rights of parents in respect of their children anywhere, rather it talks about the children having a right to have a significant and meaningful relationship with each of their parents, unless it is contrary to their best interests.
The concept of parental responsibility refers to all of the duties, authorities and responsibilities that parents have in relation to their children as at law. This will include making decisions on behalf of the children about long term issues such as their religious and cultural upbringing or providing consent for major medical procedures, the responsibility to provide for the children’s physical needs and intellectual needs such as education and healthcare.
If a court is going to make an order for equal shared parental responsibility, that means each parent is required to consult with the other when making decisions about any long term issues concerning their children. In practice this does not always work, and is commonly a source of conflict between separating parents.
The legislative pathway in the Family Law Act then provides that if a court is going to make an order for equal shared parental responsibility, then it must consider whether an equal time arrangement is going to be in the best interests of the children, or otherwise reasonably practicable. If it is determined that an equal time arrangement is not in the children’s best interests or reasonably practicable, then a court is required to look at whether an arrangement of each parent having significant and substantial time will be in the children’s best interests.
Social science research has found that an equal time arrangement for children will only work in a minority of cases. In those cases where it is likely to work, conditions must exist to enable it to work. This will include the parents having a good level of communication and cooperation, the capacity to be flexible about the arrangements, a genuine desire and capacity to make an equal time arrangement work, and that the parents are living within close proximity of one another.
In cases where there is any level of conflict between the parties, then an equal time arrangement is unlikely to work.
When the 2006 amendments to the Family Law Act were enacted, there was a view amongst some lawyers that as a matter of logic there probably would not be too many cases where a court would impose an equal time arrangement, given that the cases requiring a judicial decision are usually the worst category of cases, or the parties are simply unable to reach an agreement given the level of conflict between them. These are the type of cases that would usually include features excluding an equal time arrangement from being possible. However, there have been cases where the courts have ordered equal time arrangements where it ought not to have done so.
As a matter of commonsense, why should a court determine what parenting arrangements are in the best interests of a child with the starting point being a consideration of an equal time arrangement? Shouldn’t the starting point really be “what are the needs of this child?”
The legislative methodology that a court is required to follow in order to determine a parenting matter has had some unfortunate consequences elsewhere. Before even contemplating applying to a court for parenting orders, there is a legislative requirement for parties to try to resolve their parenting issues through alternative dispute resolution such as mediation. For this purpose the government provided funding for the establishment of family relationship centres. At the same time other private mediation service providers also set up mediation services for parenting disputes. A system of registration was established for what is called family dispute resolution practitioners, essentially mediators.
Amongst the legal profession, which refers a large proportion of cases to family dispute resolution practitioners for mediation, there were stories of some mediation service providers conducting mediation with the starting point being to look at an equal time arrangement. This was a concern as it demonstrated a misunderstanding of what the changes to the Family Law Act actually said, and was contrary to how the mediation process was supposed to proceed. If there is to be a starting point in any parenting mediation, then it should be an examination of the needs of the children post separation.
When proceeding to a mediation conference, it is advisable for the parties to seek independent legal advice prior to the conference. However, it is the authors view that the focus should not weigh too heavily upon the legal methodology prescribed in the Family Law Act to determine parenting cases. Rather, the emphasis ought to be upon the children’s needs, what arrangements are going to be appropriate or workable, and how best to manage the case.
There are different models of mediation in parenting matters. Some are child inclusive, whereby the children are interviewed by a child consultant who reports back to the parties. In some parenting matters, it may be appropriate to have lawyers present to help manage the mediation, depending upon the issues in the case.
JewishCare recently established a program called Family Dispute Resolution (FDR). With 6 accredited family dispute practitioners JewishCare is able to provide a mediation services in family law matters dealing with financial, parenting and child support issues and are able to provide child inclusive mediation and involve its own child consultants. The program provides an opportunity to reach agreements about parenting and /or property arrangements following separation and can help a family sort out these issues without going to court.
In addition, JewishCare’s FDR is able conduct mediation with lawyers participating, and prior to any mediation conference will consult with the parties and their lawyers to determine how best to manage any case through mediation.
Where the parties have successfully mediated an agreement concerning post separation parenting arrangements, it is advisable for the parties to have the agreement made into parenting orders by consent. This is a straight forward process which will involve the parties’ lawyers drafting a set of parenting orders together with an application, and then lodging it in the Family Court. This process does not require the attendance of the parties at Court. However, in the event mediation does not succeed in resolving parenting issues, then the parties will be issued with a certificate referred to as a Section 60I certificate, which then enables them to commence Court proceedings to seek parenting orders. Of course, in these circumstances it is recommended the parties seek legal advice concerning what parenting orders they ought to seek, and of the process involved.
In consultation with Paul Boers, Senior Associate of Craddock Murray Neumann Lawyers of Level 3, 131 York Street, SYDNEY NSW 2000 Telephone: 8268 4000.
