Shared Parenting: Who Gets What When It Comes to Family Tax Benefits?

Susan Jayne

Susan Jayne

Online Legal Information Author at Family Law Express
Susan Jayne is currently in her fourth year of attaining degrees in both Law and Psychology. While volunteering at a Psychology Clinic throughout her university studies, she’s aspiring to find a career which utilises her new found knowledge in both of her chosen fields.
Susan Jayne

Family-Tax-Benefits-and-Shared-CareFamily Tax Benefit payments are provided by the government subject to eligibility criteria to assist families with the cost of raising children.

Not all families however come in the conventional in-tact form, and some confusion can arise as to how Family Tax Benefits are divided in some circumstances.

When two separated parents share care of the child for instance, which parent is eligible for what amount of Family Tax Benefit (FTB) payments becomes much more complicated.

How much you are entitled to is calculated on the percentage of time that you care for your child, but this can be difficult to determine.

How do I prove how often my child is in my care?

This is a lot easier when both parents agree on the amount of time the child has and will spend with each parent. When the two parents dispute how often they care for the child, the Department of Human Services will make the decision. 1 If this is the case, try to provide copies of any of the following items that may support your claim.

  • A copy of a Parenting Plan or Family Law Order which details the custody arrangement.
  • Written communication between you and the other parent, such as emails or text messages that mention days to pick up or drop off the children.
  • Regular attendance at activities with your child, such as a sporting event you attend every week, a pre-school program you take them to and from, or a regular play group.
  • Tickets for travel or events with your child
  • Statements from friends or relatives who can confirm that you have the child as often as you say you do.

How much can I receive?

Listed below is what you are entitled to depending on how often your child is in your care. The below list specifies time in nights per fortnight for ease of use, but it is actually the percentage of time that matters. The amount of FTB you may receive depends on the percentage of time the child is under your care, with key percentages being 14% (Regular Care), 35% (Shared Care) and 65% (Primary Care).

Shared care – 1 night or less per fortnight

If you care for your child less than 14% of the time, you will not be eligible to receive any FTB or associated benefits.

Shared care – Between 2 and 4 nights per fortnight

If you care for your child between 14% and 35% of the time, this is considered “regular care” and you are not eligible to receive the FTB2. However, you may be eligible for some of the benefits attached to FTB, such as rent assistance or a Health Care Card.3

Shared care – Between 5 and 9 nights per fortnight

Family tax benefits are allocated differently when each parent has the child between 35% and 65% of the time. If this is the case, this is “Shared Care” and the FTB can be split between the two parents.4

The Department of Human Services formula for working this out is listed below.5

  • If you can for the child between 35% and 48% of the time, you can receive 25%of the FTB with an additional 2% for every percentage over 35%. E.g. If you care for the child 40% of the time you are entitled to 25% + (5 x 2%), which is 35% of the FTB.
  • If you care for the child between 48% and 52% of the time, you may receive 50% of the FTB.
  • If you care for the child between 52% and 65% of the time, you may receive 51% of the FTB with an additional 2% for every percentage point over 53%. E.g. If you care for the child 55% of the time, you may receive 51% + (2 x 2%), which is 55% of the FTB.
Care of child What you may receive
Percentage of time Days per fortnight Percentage of FTB FTB-A per child per fortnight ***
35% 4.9 days 25% Up to $57.50
40% 5.6 days 35% Up to $80.51
45% 6.3 days 45% Up to $103.51
48-52% 6.7-7.3  days 50% Up to $115.01
55% 7.7 days 55% Up to $126.511
60% 8.4 days 65% Up to $149.51

*** This is based on the current maximum payment rate for Family Tax Benefit Part A of $230.02 per child per fortnight,6[i] and does not include other FTB payments or related benefits, such as Family Tax Benefit Part B, large family supplement or rent assistance.

Shared care – 10 nights or more per fortnight

If you are responsible for your child more than 65% of the time, this is considered “primary care” and youmay receive 100% of the FTB for which you are eligible. 7

Download Presentation (PPTX)

  1. Human Services Website – Your percentage of care affects your Child Support http://www.humanservices.gov.au/customer/enablers/child-support/child-support-assessment/your-percentage-of-care-affects-your-child-support.
  2. Human Services Website – Your percentage of care affects your Child Support http://www.humanservices.gov.au/customer/enablers/child-support/child-support-assessment/your-percentage-of-care-affects-your-child-support.
  3. Human Services Website – Your percentage of care affects your Child Support http://www.humanservices.gov.au/customer/enablers/child-support/child-support-assessment/your-percentage-of-care-affects-your-child-support.
  4. Human Services Website – Your percentage of care affects your Child Support http://www.humanservices.gov.au/customer/enablers/child-support/child-support-assessment/your-percentage-of-care-affects-your-child-support.
  5. Information Booklet about your claim for Family Assistancehttp://www.humanservices.gov.au/spw/customer/forms/resources/ci011-1407en.pdf.
  6. Human Services Website – Payment rates for Family Tax Benefit Part Ahttp://www.humanservices.gov.au/customer/enablers/centrelink/family-tax-benefit-part-a-part-b/ftb-a-payment-rates
  7. Human Services Website – Your percentage of care affects your Child Support http://www.humanservices.gov.au/customer/enablers/child-support/child-support-assessment/your-percentage-of-care-affects-your-child-support.

Vexatious Litigants & Family Law Proceedings in Australia

Megan Hosiosky

Megan Hosiosky

Online Legal Information Author at Family Law Express
Megan Hosiosky is a current postgraduate Law student and has graduated with a Bachelor of Social Work. She has worked professionally both in Sydney as well as internationally. Megan has a passion for the development of child protection and domestic violence laws within Australia.
Megan Hosiosky

Latest posts by Megan Hosiosky (see all)

vexatious-litigant-family-lawFamily law proceedings are sometimes punctuated with unexpected events that may at times hinder or even halt proceedings.

These events can occur as a result of misuse of role, and applies to all parties to proceedings including the legal representatives and the judicial officers.

We have previously discussed “How to Remove a Judge or/and an ICL from Proceedings“, and now we will look at how the Courts can remove a litigant from proceedings and under what circumstances.

Litigation is not a process that is embraced by individuals involved. It can be extremely stressful, inconvenient, expensive, lengthy, and emotionally challenging.

However there are some individuals which pursue cases relentlessly and with improper purpose causing issues within the court system. These people are called Vexatious Litigants.

A Vexatious Litigant is anyone who repeatedly takes legal action for wrongful purposes or without reasonable grounds and become subject to Vexatious Proceedings1 under the Vexatious Proceedings Act 2008 (NSW)2.

Section 6 of the Act defines vexatious proceedings:

  • “(a) proceedings that are an abuse of the process of a court or tribunal, and
  • (b) proceedings instituted to harass or annoy, to cause delay or detriment, or for another wrongful purpose, and
  • (c) proceedings instituted or pursued without reasonable ground, and
  • (d) proceedings conducted in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose.” 3

A vexatious litigant is known to create a proceeding which intended to harass or annoy, cause delay or … taken for some other ulterior purpose or which lack reasonable grounds” 4.

Justice Adrian Roden in Attorney General v Wentworth (1988)5 sets out three tests for establishing a vexatious proceeding.

  • ” 1. Proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person against whom they are brought.
  •   2. They are vexatious if they are brought for collateral purposes, and not for the purpose of having the court adjudicate on the issues to which they give rise.
  • 3. They are also properly to be regarded as vexatious if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless.” 6

Challenges in Managing Vexatious Litigants

The Vexatious proceeding Act (2008)7 is criticized by Nikolas Kirby’s  in his article “When rights cause injustice: a critique of the Vexatious Proceedings Act 2008 (NSW)”8 2009 163-181.].

Kirby discusses how the Act (2008)9(which replaced the previous Supreme Court Act (1970)10) has 4 main flaws11.

  • Firstly, it broadens the term vexatious litigant beyond the established test previously stated in s84 of the Supreme Court Act 1970 (NSW)12.
  • Secondly, the scope of a vexatious proceedings order is expanded, preventing trials in both tribunals and courts.
  • Thirdly, the standards to apply for an order are lowered allowing a larger range of parties to apply.
  • Lastly, it provides more flexibility within the courts in both the constructing and declining of orders 13.

The Vexatious Proceedings Act 2008

In order to fall within s84 of The Supreme Court Act  (1970)14 individuals must have a lack of reasonable ground for the proceeding, and the litigant must have ‘habitually and persistently’15164 ALR 378 at [53]-[54].] instituted the proceeding16.

Here there is a high threshold and standard for an individual to be successfully claimed as a vexatious litigant. The criteria states a high merit must be met and merely ‘frequent’17 proceedings will not suffice18.

However s8(1)(a) of the Vexatious proceeding Act (2008)19 contradicts this in stating that an individual is a vexatious litigant if they frequently conducted proceedings. ‘Frequently’ here means,repetitively, short interludes, or numerously.

However, this term needs to be observed relatively and within the context of the situation20. Thus, the tests established in Attorney General v Wentworth (1988)21 become paramount.

Caselaw and Determining a Vexatious Litigant

The first two bases of a vexatious litigant established in Attorney General v Wentworth (1988)22 are subjective to character allowing for a contextual and relative association, the third is objective allowing for three alternative and a more contextual well rounded bases to this definition23. S84 of the Act (2008)24, allows for alternative action for those individuals who are or may be deemed as vexatious, an example being alternative dispute resolution25. These alternatives allow for a speedier and less expensive route for all parties involved.

Through the established definitions of a vexatious litigant there are some risks of inequality and injustice. There are individuals who may be excluded from the court system due to these definitions because of social disadvantages, established from social inequalities, rather than on the value of their claim.  These individuals may be those who are self-represented due to the financial burden of the justice system, other individuals being those who suffer from a disability or have a limited understanding of English, and thus slowing down the proceeding26.

Risks of Inequality and Injustice

Although, defining particular individuals as vexatious may create an injustice, a lengthened and expensive court process created by vexatious litigants, create inequality and injustice to the rest of society. Attorney-General of Victoria, Robert Clark states,

When frivolous claims are brought before the courts, individuals, businesses and governments are forced to incur unnecessary legal costs and expenses to defend their rights and the rights of taxpayers and the community”.27

Vexatious Litigants and Family Law

In Family Law proceedings, the impact of a vexatious litigant can be significant. The impact on the individual who becomes a victim of their conduct can be extremely harmful.  This type of process results in the party without the financial means and resources to sustain the lengthened court proceedings, to opt out of matter presented by the vexatious litigant28.

Family Law litigation has the highest rate of vexatious litigants than any other jurisdiction in Australia29. The Family law court has three times the amount of vexatious litigants than any other superior court combined30. However a structural issue arises due to the closed court rules of Family Law, restricting NSW courts from taking previous Family Court litigation into account31.Wilmoth and Wilmoth (1981)32 is an example of the stress that a vexatious litigant can place on the opposition and the children involved.

The Family Law Act (1975)33includes regulations against vexatious litigants to aid in preventing this abuse of justice and the subsequent stress placed on these individuals. An example of this being s118 of the Act34, stating that the courts can dismiss proceedings ormake cost orders if they deem a case is vexatious. S118 of the Act (1975)35 gives the Family Court the discretion and control once the limit has been established. In the Family Courts, history of conduct or any aspects of repetition do not need to be taken into account; merely the threshold test is applied36.

  1. Supreme Court of NSW ‘Vexatious Proceedings’ Last updated 16/6/2014, viewed 4/7/14 <http://www.supremecourt.lawlink.nsw.gov.au/supremecourt/SCO2_vexatiousproceedings.html?s=1001>.
  2. Vexatious Proceeding Act 2008 (NSW).
  3. Vexatious Proceeding Act 2008 (NSW).
  4. Bernard Cairns, Australian Civil Procedure, 6th edn, Lawbook Co, Australia, 2004, 88. 
  5. Attorney General v Wentworth (1988) 14 NSWLR 481.
  6. Attorney General v Wentworth (1988) 14 NSWLR 481 at 491.
  7. Vexatious Proceeding Act 2008 (NSW).
  8. Nikolas Kirby ‘Law Reform Essay: When rights cause injustice: a critique of the Vexatious Proceedings Act 2008 (NSW)’ Sydney Law Review [Vol 31:163
  9. Vexatious Proceeding Act 2008 (NSW).
  10. Supreme Court Act 1970 (NSW).
  11. Above n8, 164.
  12. Supreme Court Act 1970 (NSW) s 84, repealed by the Vexatious Proceedings Act 2008 (NSW).
  13. Above n8, 164.
  14. Supreme Court Act 1970 (NSW) s 84, repealed by the Vexatious Proceedings Act 2008 (NSW).
  15. Ramsey v Skyring [1999
  16. Above n8, 165.
  17. Vexatious Proceeding Act 2008 (NSW). S8(1)(a).
  18. Ibid.
  19. Vexatious Proceedings Act 2008 (NSW) s8(1)(a).
  20. Above n8, 165.
  21. Attorney General v Wentworth (1988) 14 NSWLR 481.
  22. Attorney General v Wentworth (1988) 14 NSWLR 481.
  23. Above n8.
  24. Supreme Court Act 1970 (NSW) s 84, repealed by the Vexatious Proceedings Act 2008 (NSW).
  25. Above n8, 168.
  26. Ibid.
  27. Denis Napthine, Premier of Victoria, ‘Coalition acts to limit vexatious litigation’  16 March 2014, viewed 3/7/14 <http://www.premier.vic.gov.au/media-centre/media-releases/9393-coalition-government-acts-to-limit-vexatious-litigation.html>.
  28. Michael Lynch, What is a Vexatious Litigant, Michael Lynch Family Lawyers, March 2011, viewed 4/7/14 <http://www.michaellynchfamilylawyers.com.au/what-is-a-vexatious-litigant>.
  29. Grant Lester and Simon Smith, ‘Inventor, Entrepreneur, Rascal, Crank or Querulent?: Australia’s Vexatious Litigant Sanction 75 Years On’ (2006) 13 Psychiatry, Psychology and Law 1 at 17 in Above n8, 169.
  30. Evidence to Law Reform Committee, Parliament of Victoria (‘Victorian Parliamentary Committee’), Melbourne, 6 August 2008, 2–3 (Simon Smith); Evidence to Victorian Parliamentary Committee, 13 August 2008, 2 (Mental Health Legal Centre), 2–3 (Federation of Community Legal Centres) at 3.
  31. Family Law Act 1975 (Cth) s 121; Family Law Rules 2004 (Cth) r 24.13.
  32. Wilmoth and Wilmoth (1981) FLC 91-030 at 76,287.
  33. Family Law Act 1975 (Cth).
  34. Family Law Act 1975 (Cth), s118.
  35. Family Law Act 1975 (Cth), s118.
  36. Anthony Moon, ‘The Vexatious Litigant Part 2’ Hearsay, The Journal of the Bar Association Queensland: 68 June 2008, Viewed 5/7/14 <http://www.hearsay.org.au/index.php?option=com_content&task=view&id=1295&Itemid=48>.

Family Law Jurisdictions in Australia and the Roles They Play

Julie cheung

Julie cheung

Online Legal Information Author at Family Law Express
I am undertaking my third year of a Bachelor of Combined Arts/ Law at the University of New South Wales with a major in philosophy and minor in sociology.  I am interested in pursuing a legal career particularly in Family Law or Criminal Law, especially aiming to improve and ensure equal access to justice by addressing the issues in these areas of law and difficulties faced by the people.
Julie cheung

Family-law-jurisdictionsDifferent courts have the power to handle different subject matters. Whether your disputed matter can be heard by a particular Court depends on their jurisdiction. This article explains the various family law jurisdictions exercised by the Courts in Australia.

Jurisdiction is the power conferred by statutes for the Courts to address certain subject matters under those Acts. There are different types of jurisdictions that allow the courts to hear different types of subject matters. The two main types of jurisdiction of a court are the original jurisdiction and the appellate jurisdiction. The original jurisdiction of a court is the original powers conferred by a statute to decide on matters listed under it. The appellate jurisdiction can be exercised by a higher court to review your unsuccessful or undesirable judgement from a lower court. This process is called an appeal. 1

In Australia, there is also federal jurisdiction and non-federal jurisdiction. A Court with federal jurisdiction can hear matters from any in Australia and is binding everywhere. Non-federal jurisdiction is the power of a State court to hear matters only within their respective State.

High Court of Australia

The High Court has federal jurisdiction. The judgements from the High Court are final and binding throughout Australia. It is the last avenue to appeal your matter 2However, before the High Court proceeds with hearing your appeal, special leave must be granted by the High Court. Special leave is not often granted and only granted for appeals on important matters of law to be decided on.

During 2012-2013, out of the 14 applications for special leave to appeal filed in the High Court from judgements of the Family Court, only one was allowed and heard, 7 were determined but not granted and the rest refused. 3

Family Court of Australia

Original Jurisdiction

The Family Court is a Federal Court with federal jurisdiction so it applies throughout Australia (except Western Australia, see below).The Family Court usually hears more complex matters and where the lower federal Court, the Federal Circuit Court, has no jurisdiction. The Court also has the discretion to transfer pending proceedings to the Federal Circuit Court. 4

TheFamily Law Act 1975 (Cth) expressly confers jurisdiction to the Family Court to hearfamily law matters relating to “matrimonial causes” and de facto “financial causes.” 5In summary, the Family Court can hear matters concerning:

  • Divorce and nullity of marriage
  • A declaration as to the validity of a marriage, divorce or annulment
  • Children 6
  • Maintenance for children and spouses
  • Child support
  • Injunctions
  • Enforcement of court orders
  • Overseas maintenance orders 7
  • The Hague Convention 8
  • Child Abduction 9

Under theMarriage Act 1961(Cth), the Family Court has jurisdiction regarding: 10

  • Authorisation of marriage of a person under age of 18 or 16 years in exceptional circumstances 11
  • Consent by magistrate where parent refuses to consent 12
  • Re-hearing of applications by a judge 13
  • Declaration of legitimacy 14

Appellate Jurisdiction

The appellate jurisdiction of the Family Court is exercised by a Full Court consisting of 3 or more Judges from the Appeals Division. 15 The Full Court of the Family Court can hear appeals from decisions from the Federal Circuit Court, Federal Court of Western Australia and Supreme Courts of a State or Territory exercising jurisdiction under the FLA. 16If this outcome is unsuccessful or undesirable, the next avenue is to appeal to the High Court (see above).

Associated Jurisdiction

The Family Court is the only court with associated jurisdiction in family law matters. If your matter is not within the Family’s Court express jurisdiction but is associated to it, the Family Court may be able to hear it as far as it is constitutionally permissible. 17 In order for it to be constitutionally valid, the jurisdiction of the Family Court must first be successfully invoked. 18 In other words, the Family Court may hear federal matters if it is associated with matters arising under the FLA 19 However, it will not hear associated matters being held in the Federal Circuit Court. 20

Accrued Jurisdiction

Generally the law of accrued jurisdiction allows a court to hear matters that are incidental to or arising from the main matter. So if general law matters arise from the family law matter brought to the Family Court, it would be convenient to resolve such issues than to have another proceedings 21 It can also provide a basis for orders against third parties, as long as they have an opportunity to be heard. 22

Why is Western Australia excluded in the Court’s Jurisdiction?

Western Australia is excluded because Western Australia was the only State that did not refer their State powers to make law regarding certain matters to children to the Commonwealth. 23Between 1986 and 1990, the States referred this State power to the Commonwealth because the Commonwealth’s constitutional powers to enact legislation only covered matters of marriage and divorce and matrimonial causes of divorce. Since then, the Family Court is now allowed to hear matters regarding ex-nuptial children which were not covered before as the parents were not married.

Where residents are from different states with respect to child maintenance, child bearing expenses or parental responsibility in relation to the children, section 69ZJ of Family Law Act 24 confers jurisdiction for the Family Court to hear such matters. This avoids problems that can potentially arise for residents of Western Australia, since Western Australia had not referred legislative powers in relation to children to the Commonwealth.

Family Court of Western Australia

Since State legislative powers were not referred, Western Australia maintains a State Family Court with both federal and non-federal jurisdictions to only deal with matters brought within the State. 25 Western Australia was the only State to take the option in the Family Law Act to establish a federally funded State family court. 26 It was established by the Family Court Act 1997 (WA).

By virtue of section 69H(2) 27, this Court is vested with federal jurisdiction in relation to children matters under Part VII. This Court can perform the same functions as the Family Court of Australia under the Marriage Act.  It is also vested with the same original jurisdiction under the Child Support Acts as the Family Court of Australia. 28

Section 36 of the Family Court Act (WA) 29 outlines its non-federal jurisdiction in relation to children. The Court can hear matters involving children in respect of parenting, welfare, appointment and removal of guardian and expenses, though subject to the Adoption Act 1994, 30

Federal Circuit Court

The Federal Circuit Court has federal jurisdiction to hear more simple family law matters arising under the Family Law Act (excluding WA). Formerly known as the Federal magistrates Court, it was established in 1999 as a lower level federal court to relieve some case load of the Family Court of Australia and to reduce economical and financial costs of family litigation.

Change of name

From April 2013, the Federal Magistrates Court of Australia was renamed as the Federal Circuit Court of Australia. 31 The amendment changed the title of the Federal magistrates to ‘Judge’ which allowed for a wider range of appointment. Initially, there were constitutional doubts as to the validity of appointing a magistrate for federal matters. The name ‘Circuit Court’ also reflects the Court’s significant role as a federal Court, especially the Court’s circuit work in regional and rural areas. The Jurisdiction and operation of the court did not change.

Original Jurisdiction

This Court has concurrent jurisdiction with the Family Court of Australia. In summary, the Federal Circuit Court under the Family Law Act has extensive jurisdiction to hear:

  • Applications for orders to resolve parenting and financial disputes including:

o    parenting and maintenance of children to a marriage or de facto relationship, including where children live

o   Financial orders, including the division of property and maintenance of a party to a marriage or eligible de facto relationship

  • Dissolution of marriages (excluding declarations as to validity of marriage or orders for nullity of marriage) 32
  • Maintenance for children not covered by the Child Support (assessment) and maintenance for spouses
  • Enforcement of court orders
  • Application for injunctions

Appellate Jurisdiction

The Federal Circuit Court can hear appeals from the Social Security Appeals Tribunal (SSAT)only when relating to a question of law where there was an error in exercising jurisdiction. 33

Tribunals

Social Security Appeals Tribunal (SSAT)

To appeal a decision made by a Child Support Agency from 2007, you must have already lodged an objection to the decision and this gives you the right to appeal to the Federal Circuit Court. 34 The SSAT would then take a fresh look at your matter with the same powers as the original decision maker. The SSAT can affirm, vary, re-make the decision or send the matter back for reconsideration in accordance with recommendations or directions made.

Administrative Appeals Tribunal (AAT)

The AAT reviews administrative decisions made by Government agencies under an enactment. Only a limited number of decisions regarding child support are able to be reviewed. These include whether to revoke a Departure prohibition order, whether or not to issue a Departure Authorisation Certificate and decisions about requiring a parent subject to a Departure Prohibition Order to provide security for their return to Australia. 35

Children’s Court

The State Children’s Court primarily handles care and protection of children in regards to family law matters. They have non-federal jurisdiction so each State can only hear matters from within that state. If a court finds a child is in need of care, it can make a variety of orders in the interests of the child. Each State Children’s court has different legislation governing their jurisdiction. All states handle care and protection of children and young persons in the Children’s Court.36 A child may need protection if they have been abandoned, their parents are dead or incapacitated, or the child has suffered physical or psychological abuse, or has been neglected.

Roles of State Courts

Prior to the FLA, Supreme Courts handled extensive federal jurisdiction. All other matters now go to the State Hierarchy. Non-federal family law matters involving de facto property and maintenance, family provision, adoption, welfare jurisdiction in relation to ex-nuptial children, inheritance disputes are heard in the Supreme Courts of the states and territories.

Download Presentation (PPTX)

  1. Commonwealth v Bank of NSW (1949) 79 CR 947 http://www.austlii.edu.au/au/cases/cth/UKPCHCA/1949/1.html. 
  2. Family Law Act 1975 (Cth) s 95 http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s95.html.
  3. http://www.familycourt.gov.au/wps/wcm/resources/file/eb15530b9395f47/04-appeals.html#appeals-to-the-high-court-of-australia.
  4. Family Law Act 1975 (Cth) s33B http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s33b.html.
  5. Family Law Act 1975 (Cth) ss4, 31(1) http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/index.html.
  6. Family Law Act 1975 (Cth) Part VIIhttp://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/index.html#s41.
  7. Family Law Act 1975 (Cth)  s109http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s109.html.
  8. Family Law Act 1975 (Cth)   s 110http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s110.html.
  9. Family Law Act 1975 (Cth)   s110Bhttp://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s110b.html.
  10. This is also confirmed in the Family Law Act 1975 (Cth) s31(1)(b) http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s31.html.
  11. Marriage Act 1961(Cth) s 12 http://www.austlii.edu.au/au/legis/cth/consol_act/ma196185/s12.html. 
  12. Marriage Act 1961(Cth) s 16 http://www.austlii.edu.au/au/legis/cth/consol_act/ma196185/s16.html. 
  13. Marriage Act 1961(Cth) s 17 http://www.austlii.edu.au/au/legis/cth/consol_act/ma196185/s17.html. 
  14. Marriage Act 1961(Cth) s92 http://www.austlii.edu.au/au/legis/cth/consol_act/ma196185/s92.html. 
  15. Family Law Act 1975 (Cth) s28(3) http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s28.html.
  16. Family Law Act 1975 (Cth) ss21A, 22 (2AA), (2AB), (2AC), Pt X http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/index.html#s28.
  17. Family Law Act 1975 (Cth) s 33 http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s33.html.
  18. R v Ross-Jones, Ex parte Beaumont (1979) HCA 5 http://www.austlii.edu.au/au/cases/cth/HCA/1979/5.html.
  19. Smith v Smith (1986) 161 CLR 217 http://www.austlii.edu.au/au/cases/cth/HCA/1986/36.html.
  20. Family Law Act 1975 (Cth) s33A http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s33a.html/.
  21. Phillip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 http://www.austlii.edu.au/au/cases/cth/HCA/1981/7.html.
  22. In the Marriage of Warby (2001) 28 FamLR 443 .
  23. See e.g. Commonwealth Powers (Family Law – Children) Act 1986 (NSW) http://www.austlii.edu.au/au/legis/nsw/consol_act/cpla1986399/.
  24. http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s69zj.html.
  25. Family Court Act 1997 (WA) s35 http://www.austlii.edu.au/au/legis/wa/consol_act/fca1997153/s35.html.
  26. Family Law Act1975 (Cth) s41 http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s41.html.
  27. Family Law Act 1975 (Cth) http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s69h.html.
  28. Child Support (Registration and Collection) Act 1988 s 104(1) http://www.austlii.edu.au/au/legis/cth/consol_act/csaca1988427/s104.html; Child Support (Assessment) Act 1989 (Cth) http://www.austlii.edu.au/au/legis/cth/consol_act/csa1989294/.
  29. http://www.austlii.edu.au/au/legis/wa/consol_act/fca1997153/s36.html.
  30. http://www.austlii.edu.au/au/legis/wa/consol_act/aa1994107/.
  31. Federal Circuit Court of Australia (Consequential Amendments) Act 2013 http://www.austlii.edu.au/au/legis/cth/num_act/fccoaaa2013565/.
  32. Family law Act 1975, ss39, 395AA http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/index.html.
  33. Child Support (Registration and Collection) Act 1988 s110 http://www.austlii.edu.au/au/legis/cth/consol_act/csaca1988427/s110.html.
  34. Child support (Registration and Collection) Act 1988 Part VIIA http://www.austlii.edu.au/au/legis/cth/consol_act/csaca1988427/.
  35. Child Support (Registration and Collection) Act 1988 (Cth) s72T, s72L, s72M http://www.austlii.edu.au/au/legis/cth/consol_act/csaca1988427/.
  36. Children and Young Persons (Care and protection) Act 1998 (NSW) http://www.austlii.edu.au/au/legis/nsw/consol_act/caypapa1998442/; Children, Youth and Families Act 2005 (Vic)http://www.austlii.edu.au/au/legis/vic/consol_act/cyafa2005252/;Children’s Court of Western Australia Act 1998 (WA)http://www.austlii.edu.au/au/legis/wa/consol_act/ccowaa1988385/; Child Protection Act 1999 (Qld)http://www.austlii.edu.au/au/legis/qld/consol_act/cpa1999177/; Youth Court Act 1993 (SA) http://www.austlii.edu.au/au/legis/sa/consol_act/yca1993177/; Children, Young Persons and Their Families Act 1997 (Tas) http://www.austlii.edu.au/au/legis/tas/consol_act/cypatfa1997399/; Magistrate’s Court Act 1930 (NT) http://www.austlii.edu.au/au/legis/nt/consol_act/ma142/.

Overnight Care for Under 2 Year Olds: Unravelling the Controversy

Manisharaj Kaur Pannu

Manisharaj Kaur Pannu

Online Legal Information Author at Family Law Express
I am currently studying a Bachelor of Commerce (Accounting)/Laws degree at the University of Queensland. As my academic, professional and personal experiences have solidified my interest in commercial law, I am keen on pursuing a career in a commercial law firm that values excellence, diversity, and corporate citizenship.On a personal note, I am concerned by the diminishing access to the legal justice system facing our community, and wish to play a part in the efforts of ensuring that all Australians have equal access to the law to protect and enforce their legal rights.
Manisharaj Kaur Pannu

overnight care for under 2 year oldsIt is well documented in literature that the period from birth to about 2 years is a critical development phase for a child. It is in this period that a child’s attachments are established with their carers.1

Failure to maintain and promote healthy and secure attachments in children can have adverse long-term effects on their development.2 Risk of such failure is arguably heightened in cases where parents of the child have separated. This article attempts to address the long-standing and emotional debate surrounding parenting plans after separation – in particular, the appropriateness of overnight care for under 2 year olds.

Part 1 offers an overview of the laws governing the making of parenting orders in Australia.

Part 2 provides a brief history of research surrounding the appropriateness of overnight care for young children and concludes that inconsistency in research findings have left little guidance for those involved in making parenting arrangements.

Part 3 attempts to unravel these inconsistencies and suggest a way forward.

Part 1: Current Law Governing The Making Of Parenting Orders In Australia

In making parenting orders, courts must apply the relevant legislation. An essential feature of the Family Law Act 1975 (Cth) (‘FLA’)is that a child’s best interest is the paramount consideration in parenting matters.3

Amendments to the FLA in 2006 brought about a new framework to govern parental responsibility and time arrangements. It introduced a presumption of ‘equal shared parental responsibility.’4Where the presumption applies and orders for shared parental responsibility are made, the courts must then consider making orders for the child to spend equal time with each parent. 5 These amendments were designed to stress the importance of a child having a meaningful relationship with both parents and for both parents to exercise decision-making responsibility towards their children.6

However, somehow, these amendments have led many to assume that when the presumption of equal shared parental responsibility applies, an outcome of equal time will follow. 7 This is not necessarily the case.

The paramount consideration always remains the best interest of the child and the court may not make an order for equal time if the court finds this to be inconsistent with the child’s best interests. Courts are provided with the flexibility to take into account a range of factors listed in the legislation, other evidence such as family reports, and indeed even research findings when making parenting orders.

Part 2: Research Surrounding Overnight Care For 2 Year Olds

Given the need to promote secure and healthy attachments in young children under the age of two, there is a need not only to consider research surrounding this issue but to derive principles from research findings that can be applied in making age appropriate parenting orders. However as the proceeding discussion will reveal, past research findings have been inconsistent – hence, leaving little way forward.

I. ‘McIntosh Era’

The ‘McIntosh era’ began in 2010 when the government commissioned McIntosh to study the outcomes of different post-separation parenting arrangements including overnight care for infants and older children. The report produced stated that
’young infants under two years of age living with a non-resident parent for only one or more nights a week were more irritable, and were more watchful and wary of separation from their primary caregiver than young children primarily in the care of one parent.8

The report concluded that ‘regardless of socio-economic background, parenting or inter-parental cooperation, shared overnight care of children under four years of age had an independent and deleterious impact on several emotional and behavioural regulation outcomes…at around age 4-5 years of age, these effects were no longer evident.’9The influence of these finding on the making of parenting orders in Australia has been significant.

II. Post ‘McIntosh Era’

However, according to a recently published paper approved by 110 leading experts, overnight care for infants is not problematic.10

McIntosh’s research, including the methodology incorporated, the lack of any longitudinal follow-up and the questionable choice of control subjects, has been largely criticised and with a large number of researchers publicly raising doubts about the findings.

The level of disagreement between researchers that has followed has left little room for guidance to be offered to judges and lawyers involved in crafting parenting arrangements.

Part 3: The Way Forward

Admittedly, past research reveals that we do not have steadfast answers to the issues surrounding overnight care for under 2 year olds. However, courts are being asked to decide on such matters regularly – hence, a working understanding of this issue is central to the making of safe and appropriate, if not optimal, parenting orders.

This article puts forward that given inconsistencies in past research, a blanket approach is highly undesirable. Hence, courts should be encouraged to view cases on a case-by-case basis, free from any presumptions about the effects of overnight care, and adopt a holistic approach.11

In doing so, courts can be guided by certain additional variables that have emerged consistently from past research, which have a bearing on the effects of overnight care, in deciding whether overnight care is in the best interests of the child in a particular case. These factors are discussed below.

I. Consistency

Cashmore and Parkinson suggest that ‘overnights can matter but what matters more to these children is whether they occur on a regular, unchanging schedule.’12

Consistency has been used as an important variable in many past studies and has been shown to have a bearing on a child’s behaviour. Kline Pruett, Ebling and Insabella’sresearch in particular, stressfor the need of consistency. They even go further to suggest that overnight care may be beneficial if consistency can be maintained. 13 Hence, when making parenting orders, judges should consider whether the arrangement can remain consistent.14

II.Equal time

A primary consideration in the FLA is the benefit to the child of having a meaningful relationship with both of the child’s parents. This raises the question: is alternating equal substantial blocks of time such as week-about arrangements for children under the age of two appropriate?

Cashmore and Parkinson comment that ‘apparently, many in the population think so.’ 15However, Cashmore and Parkinson highlight that ‘there is no support in the social science literature for parenting arrangements for children under four that involve alternating substantial blocks of time. The preponderance of expert opinion, based upon what is known about young children’s attachments and sense of time, is that a primary residence with one parent, regular contact with the other parent, and limited periods of separation from both parents are best for young children, and especially those under four.’16

It is equally important to bear in mind medical literature that reveals the fragile development stage of children under the age of two and their need for stable and secure attachments. 17

Furthermore, the FLA requires courts to consider the likely effect on the child of any separation from either of his or her parents. Cashmore and Parkinson suggest a cautious approach to awarding equal time for a child below two years of age.18 The paramount consideration is the best interest of the child and not notions of justice, equality or fairness amongst parents.19

III. Relationship Between The Parents

A holistic approach to this issue warrants scrutiny of the parent’s relationship when deciding to make overnight care arrangements. Solomon, discussing children over four years of age stated: ‘they continue to be subject to what every child is subject to, which is that the stress of parent conflict, whether it is expressed or suppressed, is simply a great burden for a child. That burden remains important to consider.’20

Parental conflict will not only burden a child (more so if conveyed to the child during transitions) but may also compromise the parents’ ability to remain attuned to the child’s needs. Indeed, interparental conflict may compromise the relationship of a child with his or her father figure because, as Solomon and George have commented, ‘fathers may be dependent on approval from and communication with the Mother to establish a relationship with the child in the early years.’ 21

Thus, it is essential that courts are mindful of the interparental relationship, including the parents’ willingness to cooperate and manage their differences, especially during transitions when deciding to make overnight care arrangements. 22

IV. Practicalities

When making parenting arrangements, what is optimal may not necessarily be achievable given the practical realties of the situation, even where no risk factors such as high level of parental conflict or impaired parenting capacities etc are present. 23

Work schedules, travel time, and financial circumstances, are a few examples. For those who argue that any overnight care is inappropriate, it is important to bear in mind that in reality, many single parents work and children spend significant amounts of time away from their primary carer, either with babysitters, family members or in child care centres.

In fact, working mothers who have exclusive access to their child may find it extremely exhausting, and this may arguably strain the attachment of the child with the mother. This is certainly the view shared by Bunny Banyai, co-author of a parenting book Sh*t On My Hands, whose 18 month old daughter was denied overnight stays with her father post separation.24 Hence, it is equally important that parenting arrangements are viewed in a practical context.

V. Pre-Separation Arrangements

Yet another critical consideration is the pre-separation arrangement (the status quo) of care of the child. In fact, the FLA requires judges to consider the nature of the relationship of the child with each of the child’s parents; and the extent to which each of the child’s parents has taken the opportunity to spend time with the child.25

This factor, to a certain extent, relates to consistency. In cases where parents previously lived together and played a shared role in caring for the child, the child would have formed attachments with both parents.

Research indeed shows that children can form attachments with more than one primary carer.26 In such cases, overnight care may be appropriate if parents are cooperative. The alternate situation, where parents separated before the child was born, or have never shared the care of the child, poses a more challenging problem.

Courts are obliged under legislation to consider the benefit to the child of having a meaningful relationship with both parents.27 However, as Cashmore and Parkinson put in, ‘ the law does not assume that benefit.’28They note that there is a difference between continuing a relationship on one hand, and creating a relationship on the other hand, especially in situations involving high level of inter-parental conflict.29

The difficulty then becomes; what are the ways in which the parent can form a relationship with the child, and whether overnight care is one of the ways to do so. 30 In such scenarios, Cashmore and Parkinson note that it is important to be realistic about parenting arrangements.31

It may be presumptuous to assume, in cases where there is high level of conflict, that in the first two years of a child’s life, secure and stable attachments can be formed and maintained with the child, given the child’s fragile development state and special needs. 32 However, it has often been argued that if separated parent’s avoid direct contact, then the conflict is never expressed.

Where parents are cooperative however, overnight care can assist in building a child’s attachment to both their carers and the child may very well benefit from such relationships as contemplated by s 60CC(2) of the FLA . 33

Conclusion

In summary, what is crucial is the overall context in which overnight care takes place. This article has argued that judges should adopt a holistic approach in making age appropriate parenting orders given the special attachment needs of young children by taking into account various factors, with emphasis on the above factors, which arguably have a weighty bearing on the success of overnight care for children under the age of two. Without definitive answers as to the effects of overnight care, it is unwise and risky to adopt blanket approach – the McIntosh era teaches us this, if nothing else.

  1. Federal Magistrate Robyn Sexton, Parenting arrangements for the 0 – 4 year age group(Paper presented at Legal Aid NSW Family Law Conference, Sydney, August, 2011) (Paper presented at Legal Aid NSW Family Law Conference, Sydney, August, 2011).
  2. Federal Magistrate Robyn Sexton, Parenting arrangements for the 0 – 4 year age group(Paper presented at Legal Aid NSW Family Law Conference, Sydney, August, 2011) (Paper presented at Legal Aid NSW Family Law Conference, Sydney, August, 2011).
  3. Family Law Act 1975 (Cth) s 60CA.
  4. Family Law Act 1975 (Cth) s 61DA.
  5.  Family Law Act 1975 (Cth) s 65DAA.
  6. Explanatory Memorandum, Family Law Amendment (Shared Parental Responsibility) Bill 2006 (Cth). 
  7. Federal Magistrate Robyn Sexton, Parenting arrangements for the 0 – 4 year age group(Paper presented at Legal Aid NSW Family Law Conference, Sydney, August, 2011).
  8. J McIntosh, B Smyth,M Kelaher, Y Wells and C Long, Post-Separation Parenting Arrangements And Developmental Outcomes For Infants And Children (Collected Reports) ,Report to the Australian Government Attorney-General’s Department, Attorney- General’s Department, Canberra, May 2010.
  9. J McIntosh, B Smyth,M Kelaher, Y Wells and C Long, Post-Separation Parenting Arrangements And Developmental Outcomes For Infants And Children (Collected Reports) ,Report to the Australian Government Attorney-General’s Department, Attorney- General’s Department, Canberra, May 2010.
  10. Warshak R.A., ‘Social Science and Parenting Plans for Young Children: A Consensus Report’ (2014) 20(1) Psychology, Public Policy, and Law.
  11. Cashmore and Parkinson, Contact Arrangements for Young Children (Paper presented at the 12th Australian Family Lawyers Conference Singapore
, June 2011); Federal Magistrate Robyn Sexton, Parenting arrangements for the 0 – 4 year age group(Paper presented at Legal Aid NSW Family Law Conference, Sydney, August, 2011).
  12.  M K Pruett, R Ebling and G Insabella, ‘Parenting plans and visitation: Critical aspects of parenting plans for young children interjecting data into the debate about overnights’ (2004) 42 Family Court Review 39.
  13. Cashmore and Parkinson, Contact Arrangements for Young Children (Paper presented at the 12th Australian Family Lawyers Conference Singapore
, June 2011).
  14. Cashmore and Parkinson, Contact Arrangements for Young Children (Paper presented at the 12th Australian Family Lawyers Conference Singapore
, June 2011).
  15. Cashmore and Parkinson, Contact Arrangements for Young Children (Paper presented at the 12th Australian Family Lawyers Conference Singapore
, June 2011).
  16. Cashmore and Parkinson, Contact Arrangements for Young Children (Paper presented at the 12th Australian Family Lawyers Conference Singapore
, June 2011).
  17. Clark, E, The Assessment of Attachments (Paper presented at the Judicial Conference Northampton, United Kingdom, May 2010).
  18. Cashmore and Parkinson, Contact Arrangements for Young Children (Paper presented at the 12th Australian Family Lawyers Conference Singapore
, June 2011).
  19. Cashmore and Parkinson, Contact Arrangements for Young Children (Paper presented at the 12th Australian Family Lawyers Conference Singapore
, June 2011).
  20. Federal Magistrate Robyn Sexton, Parenting arrangements for the 0 – 4 year age group(Paper presented at Legal Aid NSW Family Law Conference, Sydney, August, 2011) (Paper presented at Legal Aid NSW Family Law Conference, Sydney, August, 2011).
  21. J Solomon and C George, ‘The Development Of Attachment In Separated And Divorced Families.Effects Of Overnight Visitation, Parent And Couple Variables’ (1999) 1 Attachment and Human Development. 
  22. Federal Magistrate Robyn Sexton, Parenting arrangements for the 0 – 4 year age group (Paper presented at Legal Aid NSW Family Law Conference, Sydney, August, 2011) (Paper presented at Legal Aid NSW Family Law Conference, Sydney, August, 2011).
  23. Cashmore and Parkinson, Contact Arrangements for Young Children (Paper presented at the 12th Australian Family Lawyers Conference Singapore
, June 2011).
  24. See http://www.smh.com.au/lifestyle/life/shared-custody-a-mistake-for-the-under2s-say-guidelines-20111214-1ouy6.html#ixzz35nmYORPA 
  25.  Family Law Act 1975 (Cth) s 60CC. 
  26. Warshak R.A., ‘Social Science and Parenting Plans for Young Children: A Consensus Report’ (2014) 20(1) Psychology, Public Policy, and Law.
  27. Family Law Act 1975 (Cth) s 60CC.
  28. Cashmore and Parkinson, Contact Arrangements for Young Children (Paper presented at the 12th Australian Family Lawyers Conference Singapore
, June 2011).
  29. Cashmore and Parkinson, Contact Arrangements for Young Children (Paper presented at the 12th Australian Family Lawyers Conference Singapore
, June 2011).
  30. Cashmore and Parkinson, Contact Arrangements for Young Children (Paper presented at the 12th Australian Family Lawyers Conference Singapore
, June 2011).
  31. Cashmore and Parkinson, Contact Arrangements for Young Children (Paper presented at the 12th Australian Family Lawyers Conference Singapore
, June 2011).
  32. Cashmore and Parkinson, Contact Arrangements for Young Children (Paper presented at the 12th Australian Family Lawyers Conference Singapore
, June 2011).
  33. Cashmore and Parkinson, Contact Arrangements for Young Children (Paper presented at the 12th Australian Family Lawyers Conference Singapore
, June 2011).