In the case of Willis & Field [2014] FCCA 514 (20 March 2014) the court had to decide the issue of whether equal shared care between the two parents in this instance  was in the best interests of the children.

The mother and father had entered into an equal parenting arrangement where the children aged two and four spent each alternate week with each parent.  This arrangement was imposed as a compromise arrangement which was 11 months before the appointment of the psychologist and family consultant to the case

The father and the ICL (the independent children’s lawyer representing the children’s interests) had proposed continued equal time between both parents.  The mother sought an order for the children to live with her and spend time with the father on alternating weekends.

The mother’s case at [28] was that “at their ages the children were spending too long away from each parent” and that “maybe for X & Y (the children) it is not so much about who is best placed to parent the children but who is prepared to engage with and be guided by professional support services”.

Judge Phipps at [36] found that the parties were “hostile to each other. What they say about each other in their affidavits show this…Mutual mistrust and suspicion are evident and the parents remain unable to communicate effectively or to collaborate about the children…”  He  added at [41] that the parents do not have current capacity and are unlikely to have a future capacity to communicate with each other and solve difficulties that might arise in implementing an arrangement of equal time.”

The court also found at [63] that the “the history of the mother’s engagement with professional services shows that she is the one who was better attuned to X’s problems and prepared to seek the help needed”.

Judge Phipps also said at [67] that the fact that “she [the mother] would rather the children were living with the father…than they have equal time shows that the “mother is focused on the children’s needs” and that “she is better placed to care, particularly for the emotional and psychological needs of the children”.

It was decided by the court that the children live with the mother and spend every second weekend with the father.

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