Shared Care Arrangements
By Claire Naidu – Family Law Specialist
Recent studies confirm that children from separated parents are spending more time with the parent they do not live with. These studies have shown both the success and limitations of the legislative reforms introduced in 2006 for shared care arrangements. The reforms amended the former legislation and implemented a presumption of equal shared parental responsibility when making parenting orders. The reforms also include a requirement for the court to consider in each case whether it is appropriate for the care of children to be shared equally by their parents.
In August 2011 the Australian Institute of Family Studies’ journal of Family Matters has revealed one in six children with separated parents are now spending between 35 and 65 per cent of nights with both of their parents. [1] However the study also revealed that only 7 per cent of children are in an equal care arrangement, spending 48-52 per cent of nights.[2]
Under s 61DA of the Act the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child[3].
However this provision also includes a safety mechanism which states that the presumption does not operate in the event that there are reasonable grounds to believe that the parent has engaged in abuse of a child or family violence within the meaning of the Act. This follows some criticism of the legislation which states that it does not effectively secure outcomes in the child’s interests in cases of high-conflict families and that children can be placed at risk of abusive parents[4]. This criticism only intensified following the high-profile death of Darcey Freeman in 2009 after being thrown from the Westgate Bridge by her father.
Nevertheless, the changes in favour of the “presumption” of equal shared care responsibility have secured better opportunities for fathers, with the above statistics revealing an increase in equal time shared by both parents.
Elringtons Family Law Team and are able to give comprehensive advice on all steps in the process for parents seeking to secure custody of their children in both the ACT and NSW.
If you have any questions, please contact our Accredited Family Law Specialists:
Claire Naidu email: cnaidu@elringtons.com.au
Carlos Turini email: cturini@elringtons.com.au
or Contact our Family Law team on: 02 6206 1300
[1] The Australian, Law change a better bet for father, from http://www.theaustralian.com.au/business/legal-affairs/law-change-a-better-bet-for-fathers/story-e6frg97x-1226125904929 , 31 August 2011.
[2] Ibid.
[3] S 61DA Family Law Act (Cth).
[4] ABC News, Shared Parenting hurting children, from http://www.abc.net.au/news/2009-08-28/shared-parenting-hurting-children/1407562, 28 August 2011.
