Shared care – payoffs and pitfalls

Read the papers, online websites or watch TV and every other week there seems to be ongoing controversy about family law – dissatisfaction with a court decision or various interest groups criticising the law.

Current changes to family law were introduced in 2006, based upon a report by a unanimous parliamentary committee in 2003. The committee was concerned about many fathers not having sufficient time with their kids when relationships break up.

The solution accepted by the government was that in many cases mediators and courts should consider the option of equal time, or what the law calls “substantial and significant time” – that is time which is not just at weekends and in school holidays, but time during the school week as well.

The intention was that when there were no issues of violence or abuse, non-resident parents, mainly fathers, should be allowed to have some involvement in the child’s daily routine and events that are of particular significance to the child or that parent.

This is in line with the recommendations of the world’s leading experts on parenting after separation. In situations where separation is considered ‘amicable’ -  where parents get on well enough that they are not fighting in front of their children, children do best if they have the involvement of both parents and see them regularly.

There is no legal presumption that a shared care arrangement will be in the best interests of children, and definitely no rule that states that ‘shared’ means a 50-50 arrangement. The court has to be satisfied that any arrangement is best for the children. It must also be satisfied that a shared care arrangement is reasonably practicable.

Equal time is certainly one form of shared parenting – with the most common routine week about with each parent, but in practice, not many families can manage an equal time arrangement, even if they want to. About 7% of parents who have separated since 2006 have adopted such an arrangement; for one thing, parents need to live close enough to each other for it to work.

As breakups cause great financial stress for most families, housing costs can force parents to live some distance from one another, as one parent, at least, migrates to a place where homes are less expensive. In such cases, it’s unrealistic to have young children travelling long distances across a city in order to go to school in the morning, particularly when they are quite small. 

Equal time arrangements are not the only way of sharing the care of children after separation. A common alternative is that parents will organise their lives so that the children live primarily with one parent but stay with the other parent every other weekend from Friday after school till Monday morning and for a night during the week.

That reduces the complications of travel to and from school and many fathers try to rearrange their schedules so that they can leave work early on Wednesdays and go to work later on Thursday mornings.

So why has shared care been so controversial? One concern is that mothers in particular may feel pressured into a shared care arrangement when they don’t believe it is best for their children - particularly where they have concerns about their children’s safety, or continuing control by former partners who have been violent or abusive.

This is true of any situation in which either parents or children are exposed to a risk of harm, whether in a shared care arrangement, or if the violent or abusive parent sees children in the more traditional arrangement of every other weekend and during the school holidays.

The law does not support shared care where there is a history of violence or abuse. The real problem is that it can sometimes be very difficult to prove that the other parent represents a risk to the children’s safety if there is no evidence apart from one parent’s word against the other.

There is little doubt that in some cases, parents have agreed to shared care arrangements despite a strong conviction that the other parent is not a fit parent, or holding concerns about safety of themselves or their children.

A major evaluation conducted by the Australian Institute of Family Studies found that while 16% of mothers who reported equal time arrangements had concerns about their own safety or the safety of the child in the other parent’s care, 18% of fathers expressed concerns too. In the shared care cases where the mother had care of the child or children for the majority of the time (53-65% of nights), 19% of mothers and 16% of fathers expressed concerns about their own safety or the safety of the child in the other parent’s care. 

Not all these safety concerns relate to the other parent. They might have had concerns also about harm inflicted by someone apart from the other parent, such as a new partner or a relative.

It is important to get legal advice from a family law specialist before agreeing to any parenting arrangement. It needn’t be expensive for an initial consult to find out your legal position; Legal Aid and community legal centres may also be able to offer free advice.

It is unusual for courts to order that one parent has no contact with their kids, but they will do so if they are satisfied that the parent is a threat to the safety of the children or that otherwise it is not in a child’s best interest to have contact with the parent.

If there are concerns about one parent’s violence or threatening behaviour towards the other, the court may order that handovers of the children occur through a Contact Centre. This can ensure the parent’s safety.

It is also important to listen to children. Research conducted in a number of countries, including Australia, shows that about half of all children whose parents live apart would like to see the non-resident parent more often.

Many say they think an equal time arrangement would be the best idea, but it is important to be sure that children are happy with such an arrangement, and not just saying so - a child may say this because they think that the best or only way to keep the peace between their parents is to spend half their time in each household.  The level of conflict between the parents matters.

Psychologist Jenn McIntosh has found, in her work with Australian children, that kids suffer particularly in shared care arrangements when there is high, ongoing conflict between their parents. Conversely, children seem most likely to benefit from shared care arrangements where there are low levels of hostility. 

Shared care can work for children when parents cooperate.  Even then, the day to day management of children and their belongings can cause stress and annoyance, usually when stuff is left at the other house - school uniforms, homework, their electronic gadgets, excursion forms, sports gear.

The more often children transit between parents’ homes, the more likely that is to occur. It’s children who have to shuttle backwards and forwards between two households, not parents, and being fair to each parent is not a good enough reason to adopt an equal time arrangement.Parents need to sacrifice their interests to children’s needs, not the other way around.

Divorce is hard enough for many children – parents need to try and put their own emotions aside and stay focussed on their children’s and interests, rather than on their own. Whatever parenting arrangement you adopt, be flexible and keep listening to children as they grow older.

What makes a shared care arrangement work well?

British researchers, talking with children and young people, found three things in particular that made the difference between successful and unsuccessful shared care arrangements.

These were:

• whether the arrangement was based on the needs and wishes of the parents or those of the children;

• whether the arrangements were flexible enough to accommodate children’s changing needs and changes in circumstances;

• whether the children felt equally ‘at home’ in both of their parents’ homes – including their level of comfort with a parent’s new partner.

Carol Smart, 'Equal Shares: rights for fathers or recognition for children?' 24 Critical Social Policy 484 (2004) Anecdotal focus group research conducted in 2003 by the Australian Institute of Family Studies with families who had shared time concluded that for this type of arrangement to work, most  (but not all) of these conditions should be present:

• geographical proximity (of parents’ houses)

• the ability of parents to get along in terms of a business-like working relationship as parents

• child-focussed arrangements (with children kept “out of the middle”, and with children’s activities forming an integral part of the way in which the parenting schedule is developed);

• a commitment by everyone to make shared care work

• family-friendly work practices- especially for fathers

• a degree of financial independence - especially for mothers; and

• a degree of paternal competence.

By Patrick Parkinson, Professor of Law, University of Sydney & Special Counsel, Watts McCray Lawyers, Sydney

Some whens, hows and whys of shared care

What separated parents who spend equal time with their children say about shared parenting by Bruce Smyth, Catherine Caruana, Anna Ferro, AIFS, 2003