Shared care…shared responsibility

The biggest changes to the Family Law Act since the 70’s have now been in force for twelve months. The weekend dad of the past, if he chooses, can now have an increased presence in the lives of his children.

Family law solicitor Paul Cahill was cynical. In more than two decades of practising within the emotional roller-coaster that can be the family court, he had yet to see a politician who could create a simple system.

So when he heard the Federal Government planned to overhaul his workplace, he grimaced. ‘I was a little sceptical; I thought the new legislation would be a bit like window-dressing and I wasn’t quite sure how it would change things,’ Mr Cahill says now.

It was bold and expensive – a $400 million plan to make separation and divorce ‘easier’ for families. It would, the Government promised, make it less destructive for parents and fairer for their children in the long term, with, for the first time ever, a legal focus on the presumption of ‘shared’ parental responsibility.

The family law changes came around the same time as the Government announced an overhaul of the child support scheme – a three-staged program which it promised would also make it fairer for both the payee and the payer.

A year on from the family law system upheaval and Mr Cahill is a little more comfortable; he’s had time to absorb the changes and watch how they work in the real world – both inside and outside the courtroom. He likes, for example, that there has been a major shift towards both shared responsibility and shared care.

Shared responsibility enables both parents to play an equal role in determining the long-term issues for their child or children, such as schooling and health care. Shared care is about who the child resides with, when, and for how long at a time.

‘It gets away from fathers just having time with their kids every second weekend,’ Mr Cahill says. He doesn’t mind the shared care type of arrangement, where fathers get more than what the norm once was – every second weekend from Friday to Sunday, and maybe another weeknight out of the two weeks in between visits.

Now, he says, a more common situation is the child or children go to dad’s on the Friday, stay until Tuesday or longer. ‘For some families that’s actually less disruptive because there’s just the one change every fortnight,’ he says.

Sounds simple enough but there is a common criticism is that the model is a ‘one size fits all’ with scant regard for the age of the child and what is developmentally appropriate for them in terms of movement between parental homes.

Also, the system deals with people who are often emotional, aggrieved and not too interested in talking to each other, let alone brokering deals. To facilitate the move to shared parenting and responsibility Family Relationship Centres have been set up.

From 1 July this year, most separating parents must attend family dispute resolution sessions and a registered family dispute resolution provider must provide a certificate before a parenting order can be granted.

Other significant changes include:

• Courts have also been handed greater powers to deal with those who breach parenting orders
• Other Government services have also been expanded; and
• 33 new intervention services have been set up to help improve parenting and relationship skills.

Despite what may be good intentions from the Government, it remains an imperfect system.

Mr Cahill notes there are people for who shared care just will never work. Situations of violence and circumstances where separated parents do not live in the same state, or even town, are just a couple of examples.

‘There seems to be a bit of a fad at the moment for people wanting week-about and there seems to be a push from the court promoting that almost,’ Mr Cahill says. ‘But there are lots of families for whom that just doesn’t work.

‘From our point of view it’s been very positive for fathers. But on the other side of the coin, mothers have to deal with the fact there’s no longer a presumption that they have the children most of the time.’

Another flaw in the system, as Mr Cahill sees it, is a result of the corresponding changes to the child support system, whereby non-custodial parents pay less maintenance the more often they have the child/children in their care.‘We have people who want children in their care because they can get away with paying less child support,’ he says.

But he is hopeful that is the minority of people and that overall, both new systems will be better than before. ‘I think that more often than not people are deciding they want to be more involved in their child’s upbringing,’ he says.

According to the Government when it unleashed its plan, family law was a major issue: its own statistics showed more than one million Australian children lived with just one of their two natural parents. One in four children from separated families saw their non-resident parent just once a year. Or not at all.

The major focus of the Family Law Amendment (Shared Parental Responsibility) Act 2006 was, according to the Government, designed to encourage co-operation between estranged parents.

‘The reforms promote the right of children to know both their parents, to spend equal amounts of day-to-day routine time with both parents, and to be protected from harm.’ That was said last year in a joint statement between the offices of the Attorney General and Family and Community Services.

Ultimately, the new system’s success or otherwise will be judged by the children and their parents who use it. Right now though, it’s just a year in and some aspects of the changes are still being implemented – not counting the still-to-be-finalised child support reforms.

But perhaps the best analysis can be provided by those children who didn’t get a choice. Simone, now 24, is one of millions of Australians who have grown up in broken homes. ‘I wish I had the choice then, because basically, I grew up not seeing my dad.’’

Her father left her home state of Victoria when she was just 10, going to live with his new wife in Queensland. Shared care clearly would not have worked in her situation. But, she says, maybe if there had been more focus on forcing her parents to mediate and to work things out, he wouldn’t have gone. ‘He left because he couldn’t take it anymore. He was sick of the fighting,’ Simone says.

She thinks that even if he had gone anyway, maybe he would have been able to have more of a say in her upbringing. Maybe it was just the wistful dream of a longing child.

Child support reforms – What are they?

Designed to ‘better reflect the costs of children’, the changes will come into effect in three stages over two years from July, 2006.

What they include:

• A new estimate of what parents, on average, spend on their children, will aim to treat both parents’ incomes more equally, take account of the fact that older children cost more than younger children, and recognise the costs of care for both parents.
• For the first three years after separation, parents will be able to apply to have income from second jobs and overtime excluded from child support calculations, if this is earned to help with re-establishment costs.
• Parents who appear to deliberately minimise their income to avoid paying child support will pay $20 per child per week.
• From July, 2008, the maximum income cap to calculate the maximum amount of child support payable has been reduced.
• When a parent’s income is significantly reduced, the CSA take more factors into consideration when deciding the rate of child support to be paid
• Courts will be given more power to enforce child support debt payments.

Source: Child Support Agency

How child support is collected

There are two ways that child support can be collected:

Private collect

This is when the Child Support Agency (CSA) tells you how much child support is payable and the parents arrange the transfer of money between themselves.

Child Support Agency collect

This is when CSA tells you how much child support is payable, then collects and transfers the payments.

What is a parenting order?

A parenting order is a court order setting out who has particular responsibilities for the child. The court will only make parenting orders that are in the child's best interests. A parenting order can be made by the court:

• after hearing evidence and legal recommendations; or
• without hearing evidence, if the parties agree on arrangements for the child (this is called a consent order).

Different levels of care

Sole - If you have the child/ren 256-365 nights in the first 12 months of the child support period 70-100%

Major - If you have the child/ren for 220-255 nights in the first 12 months of the child support period 60-69%

Shared - If you have care of the child/ren 146-219 nights in the first 12 months of the child support period OR If you share the ongoing daily care of the child/ren equally with the other party 40-59%

Substantial - If you have the child/ren for 110-145 nights in the first 12 months of the child support period. 30-39%

By Rebecca Tucker

More information & Resources

Family Relationships Online -  information and advice about family relationship issues, services that are funded by the Government, and reforms to the family law system.

Child Support Agency - Australia – information on the reformed Child Support Scheme, commencing 1 July 2008.

People Making – bookshop with online order facility for children’s and adults’ books on separation and divorce

Shared Parenting: raising your children cooperatively after divorce by Jill Burrett and Michael Green, Finch Publishing

Mom's House, Dad's House for Kids: Feeling at Home in One Home or Two by Isolini Ricci

This article was first published in Australian Family Magazine, October 2007. Updated July 2009.