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  • Writer's pictureJarrod Carter

Co-parenting your way to 50/50 shared care

You have separated from your partner. There are hurt feelings, blame, anger and resentment. You want nothing more than to put this painful time behind you. The problem is, you have children together. For the next decade or two, you are going to be in each other’s lives. You want to have equal shared care of the children, but your ex-partner refuses. They seem to be dictating what access you have to the children. You totally disagree about what care arrangement would be in the children’s best interest. Every communication seems to be hostile. Now what?


Sadly, if you cannot reach an agreement with the other parent, your only choice is to litigate the matter in the Family Court. You do not need a lawyer but your chances of success are increased by having one because you have access to their experience and expertise. If you cannot afford a lawyer, or do not consider a lawyer to be a worthwhile investment, there are still things you can do to improve your chances. Most importantly, you need to do your homework.


The first thing to understand about the weird world of the Family Court is that parents don’t have any rights in the way you might think. Parents have the right to commence proceedings as a person with an interest in the wellbeing of the child. Grandparents also have this right. However, as a parent you don’t have a right to a relationship with your child. It is the reverse. Children have a right to have a meaningful relationship with both parents, which implies a certain amount of contact. Whenever you are talking to the magistrate, you must always frame your argument in terms of your child having access to you, and not you having access to your child.


It is heartening to know that important sections of the Family Law Act are intended to push the Court toward making Orders for equal shared care. Section 60B states that, “children have the right to know and be cared for by both their parents”, and “children have a right to spend time on a regular basis and communicate on a regular basis with both their parents”. Additionally section 65DAA states that “if a parenting order provides that a child's parents are to have equal shared parental responsibility for the child, the court must consider whether the child spending equal time with each of the parents would be in the best interests of the child.”


This means that if the Court does not make Orders for an equal time arrangement with equal shared parental responsibility, they are required to explain why it isn’t in the child’s best interests. Section 60A states: “In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.” The Court’s subjective opinion about “best interests” reigns supreme. However, they must still account for why the best interests of the child are served by not putting in place an equal time arrangement.


Lack of Co-Parenting


In my experience, the most common reason for not putting in place an equal time arrangement is toxic communication between the parents post-separation. All of the hurt, resentment, blame and nastiness from the failed relationship taints the necessary communication regarding the children.


If you want more time with your children, it is up to you to make that communication positive. This can be exceedingly difficult because you are trying to communicate with someone who won’t let you see your children enough. They also hate you and often insult you. They hold the belief that the children are “better off” in their care, and not yours. This is painful and incredibly insulting, but you need to learn to rise above it.


It is necessary to build up a body of evidence proving that you can effectively and politely communicate with the other party. You need to be able to talk about handover times and practical issues such as clothing and meals, but also all of the other conversations that parents have about their children. This includes bedtimes, dietary needs, vitamins, medicine, screen time and practically every other minor decision that is made to ensure the best interests of a child.


The Court does not like to see parallel parenting where the parents do not communicate and the children have entirely different rules, diets and routines at mum’s house, and at dad’s house. Evidence of parallel parenting tends to cause one parent to be chosen to be the primary care provider. The Court will only want to allow equal time care arrangements where there is strong evidence of co-parenting.


The most effective way to build evidence of co-parenting is to genuinely attempt to create the sort of relationship where co-parenting is possible. Treat the other parent with respect and good manners at all times regardless of how they communicate with you. Eventually they will stop being horrible to you because their abuse will start to look ridiculous.


Send emails regularly to discuss parenting issues and to provide information about the children. Keep these emails and be ready to attach them to an affidavit. Ask non-intrusive questions about what is happening in the other parent’s household such as, “Would you mind telling me your bedtime routine with the children so I can do the same?” Most importantly, only ever communicate in a manner where you would be happy for a magistrate to read it. And finally, don’t communicate so frequently that it becomes harassment. An email once per week is a good rule of thumb.


Parental Responsibility


If you have an order for equal shared parental responsibility, the court must consider putting in place an equal time care arrangement. So how do you get shared parental responsibility? You need to provide evidence of polite and effective communication on parenting issues. You need to show evidence of good co-parenting. Remember, equal shared parental responsibility tends to be the default if there is evidence that the parents are able to communicate effectively.


Don’t give the other party any evidence to suggest that communicating with you is not worth the difficulty. Never be provoked into an angry response. Always keep your communications polite and friendly regardless of how they communicate with you.


Any time the other party is rude, aggressive or nasty, take the opportunity to respond admirably. You will then have evidence of your desire to remain cordial, and the other party will begin to appear unreasonable, and counter productive. The Court tends to side with the party who appears to be most reasonable. Be committed to having a good working relationship with the other parent.


Conclusion


Not only do you need to improve communication and gather evidence of effective co-parenting, you also need to address the various issues raised by the other party. These allegations or issues may, in the short term, prevent an equal time arrangement.


Combating these allegations may involve taking positive action. For example, if you have been accused of having an issue with expressing anger around the children, you may want to consider attending an anger management course. If you have been accused of drug abuse, you may want to invest in a hair follicle test showing you are free from drugs, or counseling. If you hit a roadblock, then you need to research what sort of positive step you can take to remove the Court’s concern.


You also need to be aware of other issues out of your control such as the age of the children. For example, the court does not make equal time arrangements for very young children with a primary attachment to one parent, nor does it try to force fifteen year old's into care arrangements that they don’t like. With young children, you may need to seek an arrangement where you build up to equal time over a number of years. For older children, you might consider improving the quality of your relationship through family therapy before litigating.


Seeking equal time in the Family Court takes patience and relentless consistency. You need to carefully gather and cultivate the evidence that will strengthen your case. Show your ex and the court that you can communicate politely and positively for the sake of your children. Try not to think of the Family Court system as a place to fight, but rather, a place to prove yourself an excellent parent. If you are able to be kind, generous, thoughtful and child-focused, you may just convince your ex-partner to share the care of the children with their consent and avoid the stress and frustration of a drawn out court case.


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