An article by Randal Binnie.

Having practiced family law for almost 25 years, I have seen many changes in the Family Law Act, predominantly concerning children.

At the time of the commencement of the Family Law Act in 1976 we lived in quite a different world.  A more traditional parenting role with one parent staying at home and caring for the children existed.  Yes, it was the mother who in the main was the stay at home parent.  In the 1990’s the norm was that dad would spend every second weekend with his children and they would live with mum and of course would spend holidays with dad when he had holidays.  In many ways it was a simpler way of life with fewer distractions (no social media for one) and it wasn’t because fathers didn’t care, it was because it was just not practicable to do otherwise.  They had to work and child care was not really an option except for care by family members.

Now, we see both parents often taking a more active role in parenting.  Shared or equal shared parenting is the buzz word and it would seem that everyone perceives that to be the ultimate goal now with a focus of the Family Law Act (by government decree) on equal shared time.  Well, that is not exactly correct.   The Family Law Acts major focus on children is that the best interests of children are the paramount consideration and of course the arrangements for children’s care must be practicable for the parents and the child.

An article by Professor Lawrie Moloney lists some short dot points on when shared parenting works well: “Sharing the care of children after separation: Thinking beyond “custody and access” or “residence and contact” (Link to article )

“When does shared parenting time appear to work well?

The research suggests that such substantial sharing of parenting time after separation (roughly a third of time or more with each parent) works best when parents:

  • Live reasonably close to the children’s other parent
  • Can contain any negative feelings associated with their separation – both in the presence of the children and in the presence of the children’s other parent
  • Can resolve the inevitable disagreements and misunderstandings that crop up – for example, issues arising out of unexpected illnesses or other unplanned developments (such things occur in both “intact” and separated families but are more easily misinterpreted after separation)
  • Can accept (even if it is not easy) that the other parent has a right to live his or her new life and that the children have a right to a meaningful relationship with that parent
  • Are neither menacing towards nor fearful of the other parent
  • Know that the children are basically “on board” with this form of shared parenting and can manage moving between two “home bases” “

The points are difficult to disagree with; it is just common sense.  Shared arrangements don’t work for every parent nor do they work for every child.  The children’s ages and wishes (when they are older) need to be considered in the context of the arrangements parents propose.

As a mediator in family matters I often remind parents that it is not a competition about where children live, it is a question of quality time with the parents.  If parents can put aside their personal feelings about each other, and in the absence of real concerns for children’s welfare, the task becomes less difficult.  The focus needs to be on the children’s needs, not the parents.

The Elephant in the Room

There are times when the underlying motivation in family law court actions and mediation is financial.  The Child Support Act provides a general formula that applies to the financial contributions parents are to make for their children after separation.  The formula takes into account the income of the parents and also the ages and number of the children together with how many nights the children spend with each of the parents.

The outcome of the formula is that the less nights a parent has with the children, the more likely it will be that their child support will rise.

The outcome can be that a parent focuses on the financial aspects rather than the children’s best interests and the practicalities of any arrangement.

Dealing with Child Support in Negotiations & Mediation

It is possible in certain circumstances to apply to court for a departure from the formula but it is far more practical (and infinitely less expensive) to negotiate or mediate how child support is to be paid.  Parents can easily enter into limited child support agreements or binding child support agreements to document their agreement.  The outcome is that the formula can be changed, the amount of child support can be fixed, the school fees can be apportioned or otherwise taken account of.  In other words, it is possible to tailor your own outcome and then secure it with a document effective under the Child Support Act.

I do not intend to go into the pros and cons of limited child support agreements and binding child support agreements except to say that the “limited” type is just that with the “binding” type being only able to be changed by another agreement or by court order.  Obviously careful consideration must be given to the financial aspects of any agreement and the intended duration of the agreement as it must be remembered that circumstances change because life is like that.

So if you are negotiating between yourselves, through lawyers  or mediation keep reminding yourself –


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