Shared care vs. the child’s best interest

by Peter Magee on December 13, 2010

Late last month I attended the Fourteenth Australian National Family Law Conference in Canberra.  It was a fun time meeting new acquaintances from all around the country who practice primarily in family law and reacquainting myself with several familiar faces that I am more accustomed to seeing in or around the Courts.

A number of themes were discussed with which I could not agree. My learned colleague Paul Boers put forward a proposition in an article leading up to the conference entitled ‘Equal time arrangements need to go.’

Research presented at the conference conducted by Prof. Richard Chisholm, Dr Jennifer McIntosh, Federal Magistrate Dr Tom Altobelli and the Australian Institute of Family Studies, indicate three general scenarios in which equal time arrangements can be detrimental to children’s wellbeing and development.  They include situations where there are higher levels of inter-parental conflict, a history of some type of family violence and when very young children are forming their primary attachments.  I couldn’t agree more.  These are the types of arrangements for which judges and courts ought not consider it appropriate for children to spend equal time with both parents.

Mr Boers cites some findings which he believes indicate that ‘there has been an increase in the number of children moving in shared care time arrangements in circumstances of high conflict’.  My difficulty with that finding is that I learnt at the conference one researcher defines ‘high conflict’ as any situation where the parents don’t agree as to the care arrangements for their children.  Under those circumstances every case in which the Court orders shared care between the respective parents must be classified as high conflict. In my experience, there is a big difference between a lack of agreement and conflict which would be considered detrimental to the children.  This research cannot form the basis of any valid argument for changing the current parenting regime.

Critics of equal time shared parenting arrangements say the arrangements could conflict with the best interests of the child. They assume that because the court is obliged to consider an equal time arrangement, that its focus is some way impaired from making an arrangement in the best interests of children.  The Family Law Act explicitly says that ‘the best interests of the child’ must always be the paramount consideration in any parenting arrangement.

If the research concludes, on a proper basis, that children’s best interests are better served by an alternate regime, I would be among the first to be advocating a change.  In dealing with fundamental factors affecting the lives of the children in our society we need to be careful, and even sceptical, of those pushing emotional view points to support an agenda.

It remains the case in my experience, that shared care arrangements are not the preferred or optimal arrangement for children or their families for many reasons including distances between homes and the work schedules of the respective parents, but they are optimal for children in situations where the practical difficulties can be overcome and parents can functionally support such an arrangement.

If you are interested in pursuing a shared care arrangement, or are involved in providing shared care of your children and the arrangement is not working, we would be happy to discuss with you your situation and let you know (at no obligation) if we believe that a better result for your children may be achieved.

{ 2 comments… read them below or add one }

Marianne Olk-Billiau March 10, 2011 at 5:23 am

I have a similar dilemma although I only get to have my children for 2 night per fortnight. My ex-husband maintains that because my children are 13 and 15 that they are “old enough to make their own decisions”. I believe this has come about because the children want to “keep the peace” and are intimidated and scared of him and his new live in partner.

concerned father August 25, 2012 at 7:02 pm

my alcoholic ex wife walked out on my children and myself, stating that she never wanted to have anything to do with us ever again. I was forced by counsellors to make my children spend time with their mother as “children need to be with their mother”even though they did not want to see her at any time, as they had seen and heard it all over the years and on that night.
I was told by solicitors and counsellors that at the ages of my children “the Family Law court will find that they are old enough to make their own decisions”. Since our divorce, my ex has bought my childrens affections with the settlement paid to her, so much so that now the tables have turned and currently i have 50/50 access to my now 16 year old son and no access to my now 15 year old daughter. Counsellors wont help me to gain access, my ex will not make her spend time with me as I was forced to do for her, surely children need to spend time with their FATHER as well. It appears that the whole system is focused on the needs of the mother and who cares about the father, we are just the cash cows.
Equal rights – yeah right !!
Fathers have no rights

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