Equal shared care in family law
What is your video blog about?
My video blog today is about equal shared care. Equal shared care is a very vexed question in Family Law.
What is equal shared care?
Equal shared care is the phrase that we use when parents have equal amounts of time with the children after separation. Equal shared care can take a number of forms. One of those forms is “week about” shared cared.
What legislation applies?
In Western Australia, 2 pieces of legislation applies. In relation to de facto couples the Family Court Act 1997 applies and in relation to married couples the Family Law Act 1975 applies.
Does the legislation say parents should have equal shared care?
In Western Australia, the legislation does not say that upon separation parents must have or that children must have equal shared care.
What does the legislation say?
The legislation says that there is a presumption that both parents should have equal shared parental responsibility. But equal shared parental responsibility and equal shared time are two different things. Equal shared parental responsibility means that both parents must make joint decisions about the major long term issues in relation to the children and it does not relate to the time or living arrangements per se.
The Court must have regard the best interest of the children, in particular, the primary and secondary considerations, when deciding what the living arrangements would be. If the Court does not rebut the presumption of equal shared parental responsibility, the first thing the Court must do, is it must consider equal shared time. But when the Court finds, when considering the best interest of the child, that equal shared time is not appropriate, then the Court must consider substantial and significant time. So the legislation does not say that parents must have equal shared time.
Can parents apply for equal shared time?
Yes both parents can apply for equal shared time with the children. But every case is different and will turn on its own merits. Some cases equal shared time will be appropriate and in other cases equal shared time will be inappropriate. It is important that before bringing any court applications for any equal shared time you get advice from an experience Family Lawyer.
How do you apply for equal shared care?
The Court expects both parties to attend Family Dispute Resolution. Family Dispute Resolution is a type of mediation and there are only a couple of exceptions to that. Once the parties have completed Family Dispute Resolution they will get a Family Dispute Resolution Certificate and then they have to complete a Form 1 Initiating Application and a Case Information Affidavit and file those at the Family Court.
Are the children’s views important?
The children’s views are one of the secondary considerations when looking at what is in the best interest of the children. So every case is different. Some cases we have older children, 12 years and older, their views will be very important in deciding whether there should be equal shared care. With young children, say infants and toddlers, clearly their views would have no weight whatsoever concerning the living arrangements.
What should I do next?
If you are thinking about having equal shared care, I think the next step is to consult an experienced Family Lawyer about the prospects of success and the merits of there being an equal shared care regime for your children.
What other resources are there?
You could go to www.auslii.edu.au. You can have a look on the Family Court website www.familycourt.wa.gov.au. If you cannot afford a private lawyer, then you can try a Community Legal Centre such as Sussex Street Community Legal Centre or the Citizens Advice Bureau. You can try Legal Aid. But I think it is best that people get advice, if they can afford it, from an experienced family lawyer who practices in the area all the time.