Is it in young childrens best interest to be in a shared care arrangement?

For shared care arrangements to work, there has to be very good communication between the parents. If communication is haphazard between the parents and ongoing conflict then a shared care regime would simply not work. The children should not be subjected to the difficulties and conflict that often presents itself when parents are hostile to each other. The family Law act is very clear on children’s best interest’s principles. This case shows how the court would view a presenting argument for a shared care regime when “the ability of the parties to implement the arrangement and to communicate to resolve difficulties is so poor”. The court in this case deemed that equal time would not be reasonably practicable.

Read on for the whole case:
Children – Parents had been spending equal time with 2 young children for 11 months as a compromise – Continuation of equal time opposed by mother who proposed that children live with father if not with her in preference to equal time – Mother found to be more in tune with the children’s needs – Parenting order in her favor.

In Willis & Field [2014] FCCA 514 (20 March 2014) Judge Phipps considered parenting arrangements in respect of children who were 4 and nearly 2 (para 1) and where “[e]qual time with each parent had been in place for about 11 months” by the time the psychologist and family consultant Ms S was appointed (para 43). Both the “father and the Independent Children’s Lawyer proposed that the children live for equal time with each parent” while the mother sought that the “children live with her and spend time with the father alternate weekends” or alternatively that “if her proposal [was] not adopted … that the children live with the [father] and spend alternate weekends” with her “rather than … equal time” (paras 2 and 3). An order for equal shared parental responsibility was agreed (para 1).

The Court said (from para 2):

“ … The proposal for equal time is contained under the heading ‘Recommendations’ at the conclusion of the family report …

( … )

[20] When the recommendations together with their qualifications are placed in the context of the whole report they do not read as a clear recommendation for a final order for the children to spend equal time with each parent.

( … )

[26] ( … ) The fair inference from what each parent said to Ms S and Ms S’s observation that the parents ‘felt obliged’ is that neither parent favoured equal time but compromised.

( … )

[28] Ms S did not support a week about arrangement because at their ages the children were spending too long away from each parent. She observed that both parties are well placed to parent but they both devalue the other and their capacity and willingness to support [the] children’s relationship with each parent she thought was unclear. She makes this remark:

‘Maybe for X and Y it is not so much about who is best placed to parent the children but who is prepared to engage with and be guided by professional support services. …’

The Court said (from para 33):

“Since an order for equal shared parental responsibility will be made, I must follow the requirements of s.65DAA, that is consider whether it is in the best interests of the children and reasonably practicable for there to be equal time, and if not equal time, substantial and significant time. I must consider both requirements, the best interests requirements and the requirement of reasonable practicability. The High Court makes this clear in MRR v GR (2010) 240 CLR 461, [2010] HCA 4.

( … )

[35] … [The parties] live close enough together to implement an equal time arrangement.

[36] The parents are hostile to each other. What they say about each other in their affidavits show this … [M]utual mistrust and suspicion are evident and the parents remain unable to communicate effectively or to collaborate about the children. ( … )

( … )

[41] … the parents do not have a current capacity and are unlikely to have a future capacity to communicate with each other and solve difficulties that might arise in implementing an arrangement of equal time. …

( … )

[43] This is not conclusive of the question of whether equal time is reasonably practicable. Equal time with each parent had been in place for about 11 months when Ms S saw the parties and the children and she observed well cared for children moving readily between their parents with confidence and assurance. She assessed them as having a close and connected relationship with each parent. But while this was the case after 11 months, Ms S’s misgivings about what might happen if it continued have already been referred to.

[44] The conclusion I draw from the consideration of the reasonably practical considerations is that the ability of the parties to implement the arrangement and to communicate to resolve difficulties is so poor that equal time is not reasonably practicable.”

The Court continued (from para 63):

“Both parents have shown the capacity to provide for the children’s day-to-day needs and Ms S assesses both of them as good parents. The history of the mother’s engagement with professional services shows that she is the one who was better attuned to X’s problems and prepared to seek the help needed.

[66] … Ms S’s report … show[s] the qualifications she puts around her recommendation for equal time. A fair reading of her report is that she says that if one parent is better attuned to the children’s needs and can be assessed as better able to cater for the children needs beyond the ordinary requirements of day-to-day care then that parent should be the principal carer. The mother has shown that she is better attuned to the children’s needs and has demonstrated it with her attention to ensuring that X has the assessment and intervention that he needs. She has followed advice and has done the work of engaging with the various professionals and services.

[67] One matter which shows that the mother is focused on the children’s needs is her position that it is better for the children to live principally with one parent rather than that there be equal time. She would rather the children were living with the father rather than they have equal time. I am satisfied that this was a position she had thought through and the conclusion I have reached is that her position is correct. It is a further indication that she is better placed to care, particularly for the emotional and psychological needs of the children.”

The Court ordered that the children live with the mother and spend alternate weekends, a night in the off-week and about half the school holidays with the father.

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