Shared‐Time Parenting After Separation in Australia: Precursors, Prevalence, and Postreform Patterns

• DOI: http://doi.org/10.1111/fcre.12306
• Published date: 01 October 2017
• Author: Richard Chisholm,Bruce M. Smyth
• Date: 01 October 2017

SHARED-TIME PARENTING AFTER SEPARATION IN AUSTRALIA:

PRECURSORS, PREVALENCE, AND POSTREFORM PATTERNS

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Bruce M. Smyth and Richard Chisholm

In 2006, sweeping changes to the family law system were introduced in Australia. A central plank running through the changes

was the need for courts and divorce professionals to consider whether a child spending ‘equal’ or else ‘substantial and signif‌i-

cant’ periods of time with each parent would be in the child’s best interests and be reasonably practicable. More recently, fam-

ily violence amendments have led to greater weight being given to protecting children from harm. Yet neither set of legislative

amendments appears to have led to marked changes in the incidence of shared-time arrangements. We explore possible reasons

for this surprising outcome.

Key Points for the Family Court Community:

In Australia, shared-time arrangements in the general population of separating parents gradually increased early this

century but appear to have plateaued in recent years.

Legislation to encourage shared-time parenting did not result in a marked increase in the prevalence or incidence of

these arrangements. Nor did subsequent family violence amendments that give greater weight to protecting children

from harm lead to a marked decline in shared time.

Consent orders for shared time without litigation have increased steadily over the past decade.

By contrast, the proportion (10%) of orders made by a judge for shared time has remained relatively consistent over

the past decade.

Curiously, the proportion of children in shared-time arrangements arrived at by consent orders after proceedings have

been instituted appear to have almost doubled following the shared-parenting amendments of 2006 (from 13% to 24%)

and then almost halved after the family violence amendments of 2011 (back to 14%). However, caution is needed in

interpreting these data because of sampling issues.

Over the past decade, parenting orders have generally become more detailed in setting out the division of parenting

time.

The introduction of mandatory mediation along with new and expanded relationship support services may be helping

parents to consider the benef‌its and risks of shared-time arrangements for their children.

Keywords: Divorce; Former Spouse Relations; Joint Custody; Law Reform; Mediation; and Support Services.

I. INTRODUCTION

In Australia, shared-time parenting after separation—where children spend at least 35% of time

with each parent (i.e., “joint physical custody” or “shared residence”)—continues to attract consider-

able interest among policy makers, practitioners, and parents. Its growing popularity early this cen-

tury seems to ref‌lect the convergence of several mutually reinforcing social trends in Australia,

including: a marked increase in women’s participation in the labor force (although women are still

commonly in part-time and casual work, while also retaining their responsibilities as primary carers);

greater acceptance of the importance of the role of fatherhood; a growing appreciation that children

generally benef‌it from an ongoing meaningful relationship with both parents after separation; and

laws that increasingly favor outcomes that allow children the time to develop a meaningful relation-

ship with both their parents. The development—and greater enforcement—of child support laws

may also have contributed to the new paradigm of involved fathers.

In mid-2003, then Prime Minister John Howard announced a parliamentary inquiry to investigate

“whether there should be a presumption that children will spend equal time with each parent and, if

Correspondence: bruce.smyth@anu.edu.au

FAMILY COURT REVIEW, Vol. 55 No. 4, October 2017 586–603

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C2017 Association of Family and Conciliation Courts

so, in what circumstances such a presumption could be rebutted” (p. 17278). In exploring such a pre-

sumption, the government sought to encourage a move away from “cookie-cutter” approaches

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favoring every-other-weekend parenting schedules (Cashmore et al., 2010; Parliament of the Com-

monwealth of Australia, 2003).

3

Much of the impetus for the parliamentary inquiry was stimulated

by fathers’ groups lobbying for a presumption of equal-time arrangements (see below).

At the time, limited Australian data were available on the issue of equal parenting time. Nor was

much known about whether the encouragement of shared parenting wou ld help to build meaningful post-

separation father–child relationships and reduce the likelihood that many fathers would drop out of their

children’s lives. Politics and policy, of course, have their own imperatives regardless of the strength of

the evidence base. Policy reforms rarely come out of hard science: lobbying by i nterest groups often

plays a large part in determining which policies are to be embodied in legislation. The push by fathers’

groups to legislate for equal-time parenting after separation in Australia is a good example of the close

but complex links between politics and policy in the area of shared-time parenting.

II. THE AUSTRALIAN FAMILY LAW SYSTEM

In Australia, mainly federal (Commonwealth) laws, notably the Family Law Act 1975, go vern the

care of children following family breakdown (child support is governed by separate federal legisl ation).

The Family Law Act applies to all children and parents and is not limited to divorce proceedings or pro-

ceedings between married parents. Jurisdiction under the Family Law Act is mainly exercised by the

family courts, namely the specialist Family Court of Australia (and the Family Court of Western Austra-

lia in that state) and the Federal Circuit Court of Australia (formerly the Federal Magistrates Court),

which now deals with around 80% of children’s cases. A distinctive feature of the Austral ian system is

that parents who agree on outcomes for their children can apply for consent orders to the Fam ily Court of

Australia or the Family Court of Western Australia (although not to the Federal Circui t Court) without

having commenced proceedings. These consent orders are made by registrars after the parties pr ovide

information about the proposed orders and why they would be in the children’s best inter ests. As will be

seen, we are able to distinguish between the outcomes of these applications for consent orders and the

outcomes of consent orders made—by all of the family courts—after the parties have settled contested

cases. For convenience, we will refer to consent orders made in response to an appl ication solely for the

purpose of obtaining consent orders as “requested consent orders .”

Initially, the Family Law Act used the traditional language in providing for custody, access, and

guardianship orders after family breakdown and the familiar principle that the court must treat the

child’s welfare (now “best interests”) as the “paramount consideration” when making such orders.

Apart from a reference to children’s wishes, it left the courts to determine the child’s best interests

according to the facts of each case. In 1983, a simple list of relevant considerations (which largely

ref‌lected the existing case law) was inserted. That list was to be modif‌ied and lengthened by later

amendments. In particular, amendments in 1995 elaborated the list of relevant considerations and

added a new set of principles and objects, which drew selectively on certain provisions in the UN

Convention on the Rights of the Child. The 1995 amendments, especially in the new principles and

objects, gave special prominence to the value of children’s relationships with both parents and to

their need for protection from violence and abuse.

Following the UK lead, the amendments of 1995 also changed the traditional language:

“guardianship” was replaced by “parental responsibility,” and the court could now make various par-

enting orders, namely “residence” orders, “contact” orders, and “specif‌ic issues” orders. In one

respect, this involved more than a change of language: the new residence orders, unlike the custody

orders they replaced, dealt only with residence and did not give the resident parent any greater pow-

ers than the nonresident parent. The intention was to ensure that the contact parent would continue to

play a real parenting role, unless the court specif‌ically made an order about parental responsibility

that altered the otherwise equal position between the parents.

Smyth and Chisholm/SHARED-TIME PARENTING IN AUSTRALIA 587