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A Rebuttable Presumption of joint residency for children - Difficult?

What is the issue with the wording rebutable presumption ! Can we agree on one statement that means we start with an expectation of equal time.

What is the difference between the JPA (Joint Parenting Association) / Family First model of a rebutable presumption of joint residency for children , a Rebutable Presumption of Equal Parenting Time and Presumption of Equal Parenting Time

Is the word "Rebutable: the issue? What wording can we all agree on?

Or is it all semantics anyway?

Family First supports a Rebuttable Presumption of Joint Residency (or they say equal parenting time) so why did we fail to get that passed in the Senate?

Family First supports the introduction of a rebuttable presumption of joint residency for children after a relationship breakdown, so that both parents can have the maximum meaningful involvement in their children's life, both in terms of time and their parental responsibilities.

This is essentially the same as a presumption of equal parenting time I would have thought. Has the detail of the word "rebutable" made a rod for our backs?

 Is it time to promote simply the plain english wording of a Presumption of Equal Parenting Time  

Site Director
Here is what the SPCA said in part in one of the submissions dated 24 Feb 2006

Presumptive equal parenting arrangements
Whilst we were disappointed that the committees did not accept a presumptive equal parenting arrangement, we did however agree with the overwhelming majority of the findings and recommendations as a good starting point.
 
The case against the rebuttable presumption in favour of a child spending equal time with each parent was argued well by the HORISP committee.

The main arguments were that firstly people would spend a lot of time in court proving the other parent was unfit so that the equal time presumption would not automatically be awarded. This gave us great concerns, as we had firm evidence that while the lengthy litigation proceeded interim order outcomes were usually completely unsatisfactory… the non residential parent often had little or no relationship with their children as the residential parent controlled the often meagre contact allowed.

We also saw many poor agreements made where the non-residential parents were desperate to see their children and setteled for a poor agreement rather than a better agreement that would have taken some years to get. Many parents were worn down by the system and settled rather than face the large amount of time involved in getting a good child focused outcome.

The high costs associated with extended litigation either crippled or excluded many parties.

Finally a view became clear that a significant number of the verbal submissions to the HORISP committee suggested that the 50/50 presumption was a percentage not able to be enjoyed by many and that there were many other time portion options that required consideration and in fact were wanted. The Presumption of equal custody precluded such options on face value as the presumption on the table was a 50 /50 arrangement and not any permutation of time more suited to many dads who were working.

We agreed with the committee that equal parenting time and quality parenting time were more beneficial to the child than taking into account the child's physical placement in a particular residence for a particular time of 50%.

The Council took the view that the alternate position of a clear Presumption of Shared Parental Responsibility listing specific responsibilities for the parents, coupled with a closely linked second tier possibility of a starting point of equal or substantially equal time could work as well if not better providing there were appropriate and firm guidelines delivered to the Family Court. We believe we achieved a far better result through a range of amendments in various sections of the new Bill especially the significantly re worked section 65DAA
Note that the new Act specifically takes wording from the SPCA submissions around equal and substantially equal time and those who are not able to settle time sharing arrangements during mediation and or at the Relationship centers would be well advised to read carefully section 65DAA before proceeding to court.  :thumbs:

Executive Secretary - Shared Parenting Council of Australia
Was my post helpful? If so, please let others know about the FamilyLawWebGuide whenever you see the opportunity

Shared parenting

Shared Parenting … what is it really?



I my opinion, Shared Parenting is where both parents acknowledge the other genrally has the child's welfare in mind. I say generally, because disagreement is a normal part of human relationship. Sometimes we just need to agree to disagree. I do not believe "Shared Parenting" needs to be based on 50/50 care or needs 50/50 care to be sucessful. Much more important is the acknowledgement of the importance of the other parent, and that works both ways.

Having said that, and with the understanding that a child is usually better off where there is substantial agreement betwen the parents, Primary Dispute Resolution is the preferable way to resolve the initial difficulties between the parents. Also with the understanding that agreements are usually reached "in the shadow of the law", I believe the law should acknowledge that both parent start eqaul in the eyes of the law. Unlilateral action by one parent should be actively and vigourously discouraged.

Also considering, that for many parents the practical realities of the work force mean the an absolute 50/50 care arrangement would be effectively impossible to achieve. Yet mediation works best when it is acknowledged that the parties start as equalls.

How do we we find a balance with in the law that both acknowledges equality for the parent, yet discourages seeking an unworkablecare arrangements while protecting against a dangerous outcome.

The 2005 ammendments are a great start. But I would like to see the concept of "joint Residence at separation" written into the law in some way. Yes there needs to be an escape clause for situations where genuine protection issues come into play.

From a psychological view point, a legal, rubuttable presumption of joint residence would go a long way toward abandonment of the "primary carer" concept. In my experience, once the concept of "primary carer" is gone, the way is open to effective and equal communication as parents.

In the end, it does not matter whether the terms are "Custody", "Residence" or "Lives With" - community perception is that the paent so described has more authority and rights that the parent who has "Contact" or "Spends time with". I consider it all a bit like justice - "Justice must also also be seen to be done!".

Under the law, pre the 2005 ammendments, a close reading of theauthority and responsibilties of a "Residential" parent compared to a "Contact" parent revealed only one major diffeerence. The "Residential" parent had the added responsibilty of "encouraging" contact with the other parent. That was not listed as a responsibily for the "Contact" parent. The rest of the authority regularly conferedon the "Residential" parent by the community, was perception.


For me - Shared Parenting is a Reality - Maybe it can be for you too!
oneadadc said
In my opinion, Shared Parenting is where both parents acknowledge the other generally has the child's welfare in mind. I say generally, because disagreement is a normal part of human relationship.
The issue here is that separation where children are involved often brings out the worst traits of human nature, where one parent uses the withholding of contact with the children as a vengeful vendetta of revenge for all the ills perpetrated during the relationship that has now broken down.

How have we started to fix this?

You made a previous post "Its time to move on" that clearly articulates exactly where we are heading and that view is entirely consistent with the current legislation and some recent judgements also posted in the forums. We are rapidly moving ahead as momentum gathers around the fact that the new legislation does allow the reality of shared parenting time outcomes. We are seeing appeals override those judges who have not yet GOT IT! and most certainly (read news item on Law Conference in Perth posted last year in news) the Chief Justice of the Family Court wants to see more child focused outcomes around appropriate and significant time with both parents.
oneadadc previous post Its Time to move on said
I strongly believe the changes are here to stay. And what is more, the AG's concept of changing the culture surrounding Family Law in Australia will be successful. The reason I believe success is like is the changes are vertically integrated.

For Example

The Law has been amended!

A new chief Justice has been appointed who is on public record stating that she would like to see every judgement of the FCA published. Which gives new meaning to "In the shadow of the Law". Also that participants in family Law cases should not be relying to much on precedents and case law, but should instead be arguing their case on its merits.

A new level, the FRCs. has been added. Who are being watched very closely by everybody. The AG is watching because he wants to see shared care, because parliament wants to shared care, because the electorate wants to see shared care. The Men's movement is watching because they want shared care, and are learning to be a political lobby. The Single mothers groups are watching because they want to see the FRCs fail. The Solicitors are watching because if successful, many of them will have to accept a reduced income or find different work. And as an interesting side thought, it will be the AG that gets his way, for he holds the purse strings, literally.

The solicitors are looking for a new way to be relevant, they have basically been told get real or get out. The tribunals are waiting in the wings as plan B.

An extension of that concept is pressure, if needed, on the courts. There is already a precedent for taking a jurisdiction away from a court and giving it to a tribunal. The Industrial relations Court.

The Australian Institute of Family Studies is actively looking at the relationship between different parenting arrangements post separation and outcomes for children of those separated families.

Everybody else in the community welfare sector is looking for ways to involve and become involved with men and fathers.
What we do need to do however, is consider any further "tweaking" of the legislation to further assist those who have been stuck with poor orders previously and where the case law precedent "Rice and Asplund" precludes or certainly makes it harder for a litigant from going back and making additions to orders. However saying that some recent judgements have suggested that amending existing orders might be more appropriate and I will publish that judgement shortly.

Shared Parenting is supported by the SPCA and the Council has been at the fore in many discussions to put in place a legislative agenda that will ensure such outcomes are achieved ona regular and frequent basis. We are hopeful that as momentum grows and more orders are made that deliver shared or at the least substantial or equally substantial time orders.
oneadadc said
Primary Dispute Resolution is the preferable way to resolve the initial difficulties between the parents. Also with the understanding that agreements are usually reached "in the shadow of the law",  I believe the law should acknowledge that both parent start eqaul in the eyes of the law. Unilateral action by one parent should be actively and vigorously discouraged.
This is definitely the preferred option and the new Family Court RULES and the new ACT support this concept.
oneadadc said
Also considering, that for many parents the practical realities of the work force mean the an absolute 50/50 care arrangement would be effectively impossible to achieve. Yet mediation works best when it is acknowledged that the parties start as equals…. But I would like to see the concept of "joint Residence at separation" written into the law in some way. Yes there needs to be an escape clause for situations where genuine protection issues come into play. From a psychological view point, a legal, rebuttable presumption of joint residence would go a long way toward abandonment of the "primary carer" concept. In my experience, once the concept of "primary carer" is gone, the way is open to effective and equal communication as parents.
Any amendments to the legislation should ask for some wording to effect this starting point and there are threads on the forums here that discuss that wording in more detail. The best section to effect this equality is s65DAA. The wording is difficult. The words will be the key factor in delivery of the notion of shared parenting is the norm after separation although we should not underestimate what is now in law as a foundation stone. The joint residence idea may well be able to be deployed with words of "Shared Parenting Time" as my understanding is the word "Residency" or "Resident Parent" gives that parent a supremacy, perceived or otherwise to the exclusion of the Non Resident parent or contact parent (Old terms I know).
oneadadc said
In the end, it does not matter whether the terms are "Custody", "Residence" or "Lives With" - community perception is that the parent so described has more authority and rights that the parent who has "Contact" or "Spends time with". I consider it all a bit like justice - "Justice must also be seen to be done!".
So it seems…. How do we change that?
oneadadc said
Under the law, pre the 2005 amendments, a close reading of the authority and responsibilities of a "Residential" parent compared to a "Contact" parent revealed only one major difference. The "Residential" parent had the added responsibility of "encouraging" contact with the other parent. That was not listed as a responsibly for the "Contact" parent. The rest of the authority regularly conferred on the "Residential" parent by the community, was perception.
I had thought it was significantly more emphasised than that for example

- The Willingness for each parent to facilitate and encourage a close relationship with children for other parent now a major factor in determining time.

- (60CC3) Court must consider the attitude of the parents where they have taken or failed to take, the opportunity to spend time with the child etc and facilitate the other parent doing these things.

- Rebutable presumption of equal shared parental responsibility now applies at interim hearings as well as primary hearings.

- A range of specific provisions in shared parental responsibility including but not limited to religious upbringing, name, school current and future along with changes to the Childs living arrangements that make it significantly more  difficult to spend time with other parent, Child's health issues.

These are not insignificant gains in factual law and when you put them together along with the other 225 legislative amendments last year we should move as a community, in time, to a change of that community perception you so accurately describe.

Your posts on these forum are extremely valuable and offer sensible interpretation of what are complex and entrenched issues amongst a largely ill-informed community at large.  :thumbs:

Executive Secretary - Shared Parenting Council of Australia
Was my post helpful? If so, please let others know about the FamilyLawWebGuide whenever you see the opportunity

The advantages of a legislative requirement for pro-active parenting

Most reader will think HORROR … Government and the Law has no place telling Parents how to bring up their children with in the family.

But then what we are talking about Laws to be applied in the case of "Beakdown" of the family (the most common situation). I am well aware that the Law has now legaly acknowledged alternative definitions of what constitutes a Family, ie. Single Parent Families.

I would like to see the situation where it is a legal requirement for a parent (seeking to limit the children's involvement with the other parent) to be required to take active steps to notify a central registry or similar of their intention and the reasons for their unilateral action. Failure to do so would be considered a crime. In the same way that a parents failure to notify Centrelink or the CSA of changed circumstances. (The failure to pursue consequence for failure to report is a separate but related issue).

One feature of the current system is that actions are generally driven by the least responsible parent. Yet redress is often left to the other parent to pursue.

Many will argue that a requirement to report would place undue pressure on the parent seeking to protect their children from abuse. I would respond that most seem to have no trouble applying for Centrelink benefits earlier rather than later. Also, our community has absolutely no problem with the concept that schooling is compulsory. Parents are generally required to one of two things. Enrol the child at a recognised school or formally notify an authority of intention to Home School their child. There is no third option. Similarly, on the question of inoculations for children, while it is not mandatory, Parents choosing not to have their children inoculated are required to take active steps to explain their decision, or face prescribed consequences. They may be secondary, but the consequences are still there.

I see no reason why similar could not apply to the issue of parental involvement - post separation. If fact I believe it would have the effect of diminishing conflict very quickly. (Some will still try). Already, we know that most applications to a court are settled by consent out of court. I strongly suspect that the Family Relationship Centres will be successful in reducing the number of overall applications to Court (Excluding applications for consent orders).

A legislative Reporting requirement for a parent taking unilateral action in relation to the other parent's involvement with the children would have the effect of reducing the demand on both the FRCs and the Courts even further.

Even more importantly, 2 main groups would benefit immediately and directly. First, more children of separating families would continue to have regular and useful interaction with both parents. Second, the parent that would in the past have not been seeing the children would have that particular stress removed or diminished.

"Expert" opinion tells us that children and adults recover. I would make the point that time spent recovering from stress which was avoidable in the first place is time not spent growing.

For me - Shared Parenting is a Reality - Maybe it can be for you too!
I often wonder about other Governments departments that run for cover and say they are not part of the problem. Perhaps the moment a parent applies for CSA only to be told that a presumption of either equal time or subtantial time spent with the other parent exists and they have to prove otherwise (Rebuttable) what this would do to get the message across

Executive Member of SRL-Resources, the Family Law People on this site (look for the Avatars) Be mindful what you post in public areas.
Now THAT is an idea… The issue is that Child support is currently not related to contact. If it was advised that equal or substantial time exists that would certainly change the continual battle to get more time… Money speaks…Conversly I am informed by CSA that a number of contact parents do not want to exercise contact and many mums are left on their own to raise children. How widespread this is I do not know.   :dry:

Executive Secretary - Shared Parenting Council of Australia
Was my post helpful? If so, please let others know about the FamilyLawWebGuide whenever you see the opportunity

Contact not related to C$

Yep, the law says they are separate issues. Pitty, nobody told the blood suckers, of both genders.

One of the key issues for the fathers I speak to is the fact that a parent can withhold the other parents access to the children, with redress only possible through the courts if the with holding parent chooses to be difficult. Yet one phone call triggers the full force of the Child Support Agency, and in my experience, the C$A go out of their way in the first 12 months to show who's boss.


For me - Shared Parenting is a Reality - Maybe it can be for you too!
We will take this matter on board for review by CSA in one of our next meetings with FACSIA or CSA :thumbs:

Executive Secretary - Shared Parenting Council of Australia
Was my post helpful? If so, please let others know about the FamilyLawWebGuide whenever you see the opportunity
Talking to the C$A. And more so listening to the C$A. The only safe avenue is to seek a second and third and forth opinion FOR A START!
Conan said
Talking to the C$A. And more so listening to the C$A. The only safe avenue is to seek a second and third and forth opinion FOR A START!
 There is no other ground than being involved as being excluded is a lonely and desolate place to be if you are trying to change anything for the better. The art of winning ground on the legislation battlefront is not an easy one. If the SPCA, Lone Fathers Association and others are not at the negotiation table and questioning all aspects of Child Support Legislation and more importantly disseminating what is happening in that area then what hope is there for any of us… I believe those organisations consult many sources and canvas much opinion before making any commentary. At least if we are listening we might hear something worthy of discussion here.  :dry:

Site Director

Conan and Communication

Conan said
Talking to the C$A. And more so listening to the C$A. The only safe avenue is to seek a second and third and forth opinion FOR A START!
Perhaps Conan is being a little harsh if he/she is referring to the SPCA talking to the CSA.

A basic premise of seeking to influence constructive change is communication. If one can communicate ones ideas, the ideas will have an influence on the other parties position. The extent of that influence is another issue and largely depends on the quality of the ideas imparted. Competing interests must also be considered. Communication also involves "hearing" as well as being "heard".

Without organisations such as SPCA, Lone Fathers, DiDs etc who have actively sought the ear of the decision makers and then presented influential arguments  that were heard, our children would continue to face the high probability of Fatherlessness. What is more, all the people I know who have taken the time to seek influence have done so at considerable personal expense. Even the ones who do receive some funding could earn considerably more doing their own thing or in more lucrative employment.

Some years ago a number of incidents happened where parents objected strongly to orders made in the FCA. Acts of extreme violence were committed. These did not result in a review of the laws that triggered the violence. Instead the Government of the day put its resources into turning Family Court Registries in virtual fortresses.

In my early days of experience with Family Law and the CSA I was like most other people, I believed what I had been told. As the advice became more and more unreasonable, I started to do my own research. I learned to identify flawed or incorrect advice. I learned to seek multiple opinions. I learned to separate my emotional state from my decisions. I learned to succeed with both Family law and CSA.

So Conan, if you are talking about SPCA … you are being unfair! … If you are talking about the practical reality of navigating Family Law and Child Support, what you suggest represents very good advice.:thumbs:

For me - Shared Parenting is a Reality - Maybe it can be for you too!
It did not even pass my mind that Conan might have been talking about the "Payers". I suspect he is and that his commentary makes good sense in that regard. :|

Site Director

Presumptive equal time parenting arrangements - How should we make this happen

There is much debate in this Topic and in Policy forums about a "Rebutable Presumption" of equal parenting time"

Whilst we were disappointed that the committees did not accept a presumptive equal parenting arrangement, we did however agree with the overwhelming majority of the findings and recommendations as a good starting point and in particular we strongly endorsed recommendation 5 of the HORISP report to require courts/tribunal to first consider substantially shared parenting time when making orders in cases where each parent wishes to be the primary carer. (Para 2.86)

In this topic I previoulsy stated that the HORISP Committee argued a reasonable case against the implementation of a rebutable presumption in favour of a child spending equal time with each parent on the grounds that it would be very problematic.

The main arguments advanced by the HORISP Committee were that:

Firstly people would spend a lot of time in court proving the other parent was unfit so that the equal time presumption would not automatically be awarded. This concerned the Council, as we had firm evidence that while the lengthy litigation proceeded interim order outcomes were usually completely unsatisfactory. The non-residential parent often had little or no relationship with their children as the residential parent controlled the often meagre contact

We also saw many poor agreements made where the non-residential parents were desperate to see their children and did not take the time to make proper and approriate agreements.

The high costs associated with extended litigation either crippled or excluded many parties, particulalry those who could not get legal aid.

Finally a view that a significant number of the verbal submissions to both the HORISP committee and the Senate enquiry suggested that the 50/50 presumption was a percentage not able to be enjoyed by many and that there were many other time portion options that required consideration. This was a real problem because the suggestion of a rebuttable legal presumption of 50/50 joint residence is completely nonsensical when one parent wants only 40% of the time or 28% of the time under orders.

How can you make parties take 50% when they cannot simply maintain such a contact regime made under orders.
We agreed with the committee that equal parenting time and quality parenting time were more beneficial to the child than taking into account the childs physical placement in a particular residence.

Contrary to misinformation in the public arena about the HORISP findings, it needs to be stated that the HORSIP Committee were not against 50:50 time outcomes, rather they would not support a Rebutable Presumption of 50:50 time starting point for parents negotiations for all separating couples.
Remember that the HORISP report was a completely Bi-Partisan report and BOTH parties agreed on this point
Nevertheless, the Committee's recommendations and the Government response go a long way to facilitating equal and substantially equal time parenting outcomes for the great diversity of couples and family situations in the Australian community. Not all that we want but a start. Certainly I have written previosuly about the four pillars of refroms that are now well under way and time will tell if the Relationship Centers are working.

I will restate:

The Shared Parenting Council believes strongly that it is every childs inalienable right to know and be cared for by their parents equally. However, this finds expression in court orders, which are simply injunctions and as a rule in every other area of the law, are used sparingly. That is, you impose the minimum restriction on the parties' prior freedom. You put only the smallest imposition, the smallest restriction on them necessary to resolve the dispute at hand. You don't go to a disruptive extreme.

The Bill that was proposed has come into law and thenew Act recognises that we ought to work very hard to preserve for the children, for their best interest, as much of that pre-existing joint custody, time shareing, as much of that access to both parents as we can.

The Council took the view that the alternate position of a clear Presumption of Shared Parental Responsibility listing specific responsibilities for the parents, coupled tightly with a closely linked second tier possibility of a starting point of equal or substantially equal time could work as well, if not better providing there were appropriate and firm guidelines delivered to the Family Court.

The Act if anything requires more teeth in 65DAA to effect shared parenting time outcomes.

So in a nutshell - Should we support a*rebuttable legal presumption of 50/50 joint residence (equal parenting) in Australia, following separation" On the Fathers4Equality web site.

I think many(Including the Council and Government members) support a starting time after seperation of equal time where such time can be accomodated or is sought by one or both of the parents AND there are some conditions such as laid out in s65DAA about proximity etc (50/50 or some percentage is hardly going to work when one parent lives in a different school zone for example).

The wording in the Equal Parenting Network site is more interesting.(EPN are located in the Community) and a better suggestion. It will not work in a "rebuttable legal presumption" formatas the Government and Labor party made it clear both in the HORISP report and the Senate that they wouldnot accept a rebuttable presumption.It has to be laid out in such a way as to be an "Expectation" that after separation children have the right to equal and or substaintially equial time with both parents where the parents can accomodate such time.

To achieve the aims the the EPN are seekingI think we should re address the wording in 65DAA to add more weight to "Must make" orders as opposed to "should consider making orders" which Simon Hunt has pointed out under policy in the policy forums here in the Family Law Web Guide.

Executive Secretary - Shared Parenting Council of Australia
Was my post helpful? If so, please let others know about the FamilyLawWebGuide whenever you see the opportunity

Rome is burning - F4E Online Petition awaits your signature !

Hi Wayne and all,

Thanks for your response and your willingness to revisit, clarify and seek consensus on this issue.

I have included below the two postings you refer to, and I will also post this response onto the same FLWG forum/thread.

My views:
"Joint Residency" is too ill-defined and therefore invites argument.

In their Policy Statement Family First use the expression "
ERROR: A link was posted here (url) but it appears to be a broken link.
rebuttable presumption of jointresidency" (Click the link to read the policy)

However, in Family First Senator Steve Fielding's speech 28 Mar 2006 he released
ERROR: A link was posted here (url) but it appears to be a broken link.
a press release which sets out the policy "In summary, Family First strongly supports the introduction of a rebuttable presumption of equal parenting time for children after a relationship breakdown".

I have written to Steve Fielding suggesting that the policy statement be changed to "Presumption of Equal Parenting Time" to remain consistent with this speech of 27 Mar 2006.

We need to abandon using "shared parenting" or "joint parenting". A ratio other than 50/50 is always available to separated parents if that is their preference.

"Rebuttable presumption of equal parenting time" is also not desired in my opinion.

We have:
1. "equal parenting"
2. "presumption of equal parenting"
3. "rebuttable presumption of equal parenting"

From my discussions with Sue Price at MRA, Sue feels neither rebuttable nor even presumption is necessary.

The Fathers4Equality online Petition states "rebuttable legal presumption of 50/50 joint residence (equal parenting)"

In my view "presumption" is necessary because there are situations where it would not apply such as in cases of proven child abuse, and where parents live too far apart.

However, I believe "rebuttable" simply invites litigation.

Having said this, I think the real issue is to make sure "time" is stipulated. Whether it is "rebuttable" or not is a second order concern.

I believe we should get consensus for a "Presumption of Equal Parenting Time".

Wayne - do you hve a problem with the wording of the Fathers4Equality petition ?:

"rebuttable legal presumption of 50/50 joint residence (equal parenting)"

If so, please let us know why… It is not my favorite form of expression - but it doesn't matter. It is about "time" and we can dot the i's and cross the t's later, because right now, children are still suffering from the incendiary system we still have.

Cheers, Geoff

Attachment
The best outcomes for children - Family First

Coordinator, Equal Parenting Movement

Co-director, Fathers4Equality

Secretary_SPCA said
Here is what the SPCA said in part in one of the submissions dated 24 Feb 2006

Presumptive equal parenting arrangements

….The case against the rebutable presumption in favour of a child spending equal time with each parent was argued well by the HORISP committee.

The main arguments were that firstly people would spend a lot of time in court proving the other parent was unfit so that the equal time presumption would not automatically be awarded. This gave us great concerns, as we had firm evidence that while the lengthy litigation proceeded interim order outcomes were usually completely unsatisfactory… the non residential parent often had little or no relationship with their children as the residential parent controlled the often meagre contact allowed.

We also saw many poor agreements made where the non-residential parents were desperate to see their children and setteled for a poor agreement rather than a better agreement that would have taken some years to get. Many parents were worn down by the system and settled rather than face the large amount of time involved in getting a good child focused outcome.


..We agreed with the committee that equal parenting time and quality parenting time were more beneficial to the child than taking into account the child's physical placement in a particular residence for a particular time of 50%…

A Presumption of Equal Parenting Time must also be accompanied by the restructuring of Recovery Orders so that polcie can act immediately, (exactly as they act on the case of DVOs), to ensure that children have equal contact with both parents, so there is no delay in having to apply to the court for a Recovery Order, and we can ensure there is equal parenting time in the event one of the parents insists on taking the matter to court.

If there are claims of Child Abuse, these must be investigated immediately by police and it must be handled with urgency in the Magistrates Court (same as DVOs).

Lastly,
Secretary_SPCA said
..We agreed with the committee that equal parenting time and quality parenting time were more beneficial to the child than taking into account the child's physical placement in a particular residence for a particular time of 50%…"
"equal parenting time" is the same as "50%" so this statement makes no sense to me.

Cheers, Geoff

Coordinator, Equal Parenting Movement

Co-director, Fathers4Equality

Geoff Holland said
My views:
"Joint Residency" is too ill-defined and therefore invites argument.
Under current law there is no "joint residency" so we can put that behind us and agree.

Geoff Holland said
In their Policy Statement Family First use the expression "rebuttable presumption of jointresidency" (Click the link to read the policy)
We don't agree with the word rebuttable and as previously stated the Libs and Labor will not agree to "rebuttable" in the wording so we need to strike that out as well. I am convinced that Steve lost the day in 2006 through a hastily drafted set of wording that did not at all take into account the findsings of the HORISP report nor the views of the chief architects of the report Kay Hull and Alan Cadman.
Geoff Holland said
I have written to Steve Fielding suggesting that the policy statement be changed to "Presumption of Equal Parenting Time" to remain consistent with this speech of 27 Mar 2006.

We need to abandon using "shared parenting" or "joint parenting". A ratio other than 50/50 is always available to separated parents if that is their preference.

"Rebuttable presumption of equal parenting time" is also not desired in my opinion.

We have:
1. "equal parenting"
2. "presumption of equal parenting"
3. "rebuttable presumption of equal parenting"

From my discussions with Sue Price at MRA, Sue feels neither rebuttable nor even presumption is necessary.
I am inclined to agree with Sue. What happens to the sentence when you take both those words out. You end up with only equal parenting time. This is not acceptable either because it is not JUST about equal time… AND you surely have to be concerned with the issues that are dealt with in the rebutatable presumption of shared parental responsibility.

Geoff Holland said
The Fathers4Equality online Petition states "rebuttable legal presumption of 50/50 joint residence (equal parenting)" In my view "presumption" is necessary because there are situations where it would not apply such as in cases of proven child abuse, and where parents live too far apart.
Presumption means assumed so that is probably okay. Legal presumption immediatly means there will be litigation against it. Why can't it just be as simple as enhancing part of the objects in 60b where as you are well aware they raised two objects to carry more weight than previously:

- Willingness for each parent to facilitate and encourage a close relationship with children ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives.

- 2 tiered best interests (60B) provisions move substantial relationship with both parents and violence to a higher level than other provisions giving more importance to these two aspects

AND beefing up 65DAA

Geoff Holland said
However, I believe "rebuttable" simply invites litigation.
We are agreed on that

Geoff Holland said
Having said this, I think the real issue is to make sure "time" is stipulated. Whether it is "rebuttable" or not is a second order concern.

I believe we should get consensus for a "Presumption of Equal Parenting Time".

Wayne - do you have a problem with the wording of the Fathers4Equality petition ?:
I thought I had indicated in previous posts that was an issue "rebuttable legal presumption of 50/50 joint residence (equal parenting)" does not fit with current legislation. It does not fit with Labor policy nor Liberal policy, did not get past the HORISP report and wont get up in the Senate. It does not allow for parts of 50% therof, nor does it stop a legal challenge.

What we want is an assumption (In law and spelt out in the Act) on the part of all reasonable people, that when the parties separate it is assumed there is a shared care arrangement to be put in place by the parents as expidiciously as possible. The care arrangements would be defined as up to 50%. This would be subject to getting at least to the very low threshold "Shared Parental Responsibility" order. This has to happen WITHOUT the need to go to a court

Apart from teh Relationship Centers having a part to play to do this there has to be some insert into two or more sections of the Act to make it clear to the separating parties and secondly to direct the judiciary. Firstly the objects section has to be amended, then 65DAA and probably other parts. The wording is likley to be different in each of the parts but will effect the outcome you are seeking.

The Act will also need to be amended to require publication of the reasons for a Judges decision where shared parental responsibility has been ordered but the apportionment of time is less than applied for under section 60DAA. Publication either to the appropriate legal site or to the parties in the case or both.

We also suggest that the Act includes a primary policy statement as follows:

"The Parliament of Australia in recognising the fundamental right of every child to experience the love, guidance and companionship of both parents after their separation or divorce declares that it is the public policy of the Commonwealth is to assure minor children of an equal opportunity and relationship with both parents, after the parents have separated or dissolved their marriage and to require parents to share the rights, duties and responsibilities of child rearing to affect this policy." and additional amendment would be to add to the notes that describe subsection 68F (1) (ii) "other behaviour". We recommend that other behaviour should also be described as alienation of the children from one parent by another and considered as child abuse.

Add also in guide notes that the Judiciary must commence a proper implementation to effect shared parenting outcomes under the new Bill guidelines.

Geoff Holland said
If so, please let us know why… It is not my favorite form of expression - but it doesn't matter. It is about "time" and we can dot the i's and cross the t's later, because right now, children are still suffering from the incendiary system we still have.
Geoff I think it does matter. In my view you cannot go to the AG's drafting department or the Court with a half drafted rushed wording. We lost the Senator Fielding amendments which were thrashed by the Senate. With the greatest respect to Yuri who I admire for his attention to detail the i's and t's were not dotted and crossed and the wonderful oppourtunity was lost..

Proper planning and wording must be agreed by all of us. All sections of the Act to support your and our outcome of equal and or equal and substantial time must be addressed. We must supply all the text to the draftsman and have the AG's department make the amendments that they can support and pass.

Executive Secretary - Shared Parenting Council of Australia
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Geoff Holland said
A Presumption of Equal Parenting Time must also be accompanied by the restructuring of Recovery Orders so that police can act immediately, (exactly as they act on the case of DVOs), to ensure that children have equal contact with both parents, so there is no delay in having to apply to the court for a Recovery Order, and we can ensure there is equal parenting time in the event one of the parents insists on taking the matter to court.
Have you looked at the Simon Hunt posts in policy and on the site in relation to this. I think we need to look at his ideas and incorporate changes into the DVO, AVO legislation to meet this "time" requirement. It is appalling that dads can be removed and no consideration given to contact except by the vaguest comments by a police officer of "The Family Court will deal with that". (Yeah sure in which year)

As you are aware new legislation in Victoria and other states allows police to evict one parent on the whim of the other. There is no thought at that time to contact arrangements at all and that is a vital part that is missing.

Geoff Holland said
If there are claims of Child Abuse, these must be investigated immediately by police and it must be handled with urgency in the Magistrates Court (same as DVOs).
You will then be aware of the new legislation in the Act that gives specific time frames for allegations of abuse to be reviewed, by which authority and the report back to the court. There are posts on the site here about the working and in relation to false allegations. Use the forum search and search under false allegations.

Lastly
Geoff Holland said
Secretary_SPCA said
..We agreed with the committee that equal parenting time and quality parenting time were more beneficial to the child than taking into account the child's physical placement in a particular residence for a particular time of 50%…"
"equal parenting time" is the same as "50%" so this statement makes no sense to me.

Cheers, Geoff
Yes it did not make much sense when I copied it from one of the executive submissions. The thrust of the content when read in full was about the fact of residence and non residence parents and the point that often a non resident parent was having much quality time in a lesser percentage of contact time that was equal to a 50/50 package.. In other words a fuller and quality lesser amount of physical time was in many cases equal to 50/50 where that 50% may not have been as adequate. Such times as for example a baby sitter or some other party was needed to look after the child whereas the contact parent was working.


Executive Secretary - Shared Parenting Council of Australia
Was my post helpful? If so, please let others know about the FamilyLawWebGuide whenever you see the opportunity

Starting EQUAL - post separation

There has been and continues to be much debate over the words ";EQUAL"; and ";REBUTTABLE"; when used it the post; separation parenting context.

We have a new system (modifies old system with a new level) which makes pre court mediation compulsory for separating parents, with a few escape clauses.

BUT as I have said before and is well recognised and accepted, mediation is only effective where both parties acknowledge the equality of the other party. One of the arguments used against "EQUAL" time was the likelihood of increased court action seeking to prove the other party is an unfit parent. I believe the reality is that not too many more would resort to these tactics than do so already. We already have the situation where AVOs and restraining Orders are sought early and with the specific intent of establishing the status quo, used in conjunction with other delaying techniques, final resolution can take years, allowing one parent to effectively wrought the system and with a court system still wary of enforcing its orders.

Yet, there are little or no consequenses for such actions, at least for the instigator.

I believe it is time for a REGISTER. If a parent needs to flee to protect themselves or the children, they should be rquired to register with a suitable authority, offering an explanation for their behavior, and with consequenses for false accusations at the same standard of proof as required for the allegations. As the allegations often get supported, investigated and prosecuted with community resources, community resources should be made available to defend against the allegations.

AS always, isolating a person from their family is considered abuse. We need to promote this message loud and clear.


For me - Shared Parenting is a Reality - Maybe it can be for you too!
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