But we should share our children equally!

Separated or not, making decisions which affect your children can be a daunting experience.

For separated parents, the Family Law Act 1975 and Family Court Act 1997 (WA) effectively provide that separated parents are equally responsible for making the major long-term decisions about their children’s lives, unless one parent can prove that the presumption of equal shared parental responsibility should not apply to their case.

It is common for parents to mistakenly think that equal shared parental responsibility also means equal shared care. This is not the case. Major long-term decisions include but are not limited to decisions about health, medical decisions, education, and religion. Care arrangements involve day-to-day living arrangements, such as how many nights a child spends with each parent, who should take them to school, etc.

Parents often come to us seeking equal shared care of their children. We are faced with the difficult task of explaining to our clients that the Family Court makes determinations based on what is in the best interests of the children, and that the Family Court may not consider that equal shared care appropriate. This is particularly the case with young children and babies.

The Australian Association for Infant Mental Health Incorporated has published guidelines on overnight care in post-separation and divorce situations. The guidelines were most recently revised in March 2015.

The guidelines tell us the following:

1. It is difficult for infants and young children, particularly under the age of two, to be separated from their primary carer overnight;
2. Overnight separation from the primary carer can impact upon a child’s development;
3. Non-essential overnight separations are not advisable and overnight time away from the primary caregiver is not recommended unless unavoidable.
4. Daytime away from the primary carer should be kept to manageable periods of time which increase gradually based on the child’s level of comfort and ability to cope.

Whilst it can be very upsetting for a parent to think that they may not have their children in their care overnight for some time, it is important for parents to remember that the potentially detrimental impact of overnight separation from the primary carer is not generally a permanent risk. The guidelines tell us that after the age of two, “there are indices which will help predict the amount of time a young child can manage regular overnight time away from the primary carer”, with the qualification that most children should not be expected to have the developed mental capacity to reach those indices until at least three years of age.

The guidelines indicate the following to be important when deciding whether a child is capable of having regular overnight time away from the primary carer:

1. children should be able to at least in part, calm themselves when stressed or upset and use the other parent or caregiver to become soothed;
2. children should be able to imagine the primary caregiver when the other caregiver is not present;
3. children should be able to understand what is being said to them;
4. children should be able to anticipate events beyond the “here and now”, that is understand what tomorrow means;
5. children should be able to communicate about past and future events and verbally express basic needs and feelings;
6. children should be able to receive an understanding response if a trial sleepover does not turn out to be expected and future sleepovers should be postponed for a period of time.

Further, the separated parents of the young child should be able to:

1. have civil conversations together about their children;
2. adequately trust that each parent will care for the child responsibly;
3. contain any interpersonal conflict, especially on handover of the child;
4. talk to the child positively about the other parent.

The Australian Infant Mental Health guidelines are not a hard and fast rule, but in our experience, the Family Court will have regard to those guidelines in deciding whether a proposed arrangement is in the child’s best interests. In many cases, the best approach to increasing time with the parent who is not the primary carer is a gradual approach.