Parenting matters

The Family Law Act now provides for a presumption of equal shared parental responsibility.

Unless a court makes a different Order, then the parents of a child have equal shared parental responsibility.

Parental responsibility refers to the long term decision making responsibly that parents have in relation to a child. In general, long term decisions relate to children and: –

• Their health (apart from emergency health issues);
• Their name;
• Their religious upbringing;
• Their education;
• Their cultural upbringing;
• Changes to their living arrangements which would make it more difficult for a parent to spend time with a child.

The presumption of equal shared parental responsibility can be rebutted if the court accepts evidence that a parent has been abusive or violent or that it is not otherwise in the best interests of a child that that presumption is applied.

Parents now have a positive onus to consult with each other in relation to major long term issues and to make a genuine attempt to come to a joint decision about those issues.

The practical effect of the court making that presumption of equal shared parental responsibility is that a court must then consider making an Order in relation to the children which sees the children spending equal time with both parents or significant and substantial time with both parents.

Significant and substantial time means at least time: –

• On school days;
• On weekends;
• On holidays.

In general it means time which would allow a parent to be involved in a child’s daily life and also on special occasions.

We can help you if you wish to make an application to the court for an order in relation to children.

Parties must endeavour to reach agreement by attending mediation prior to commencing proceedings, save in certain extraordinary circumstances.

Parenting plans

Parents can make informal arrangements, ie not Orders, for their children by entering into a parenting plan.

A parenting plan is a document which is signed and dated by the parents of the child.

A parenting plan can deal with: –

• Where a child lives/with whom a child lives;
• The time which a child spends with parents and significant others;
• The allocation of parental responsibility;
• How parents will make decisions about their children;
• How disputes will be resolved;
• How arrangements for children spending time and travelling can be changed;
• Financial support.

We can help you if you wish to enter into a parenting plan.

We can refer you to child counsellors, family dispute resolution centres and mediators.

The overriding considerations in relation to parenting plans continue to be what is in the best interests of the children.

Parenting plans may vary or end existing Court Orders if these pre-date the parenting plan.

Applying to Court

Both parents have equal shared parental responsibility for the care and welfare of the children unless there is an Order in place which provides something different.

If the parents cannot agree where the children should live after a separation, then the court has power to make a parenting Order.

Parenting Orders can be agreed between the parties at any time until a Judge makes a decision and even after that time.

Parenting Orders can deal with many matters effecting children including: –

• The person with whom the children are to live;
• The time which children are to spend with other parties/people;
• Parental responsibility;
• How parents will make decisions about children;
• Communication by children with other parties;
• How disputes can be resolved;
• Anything else which is necessary in a case about children including, eg medical treatment, religious upbringing, which school should be attended by children.

If you wish to obtain advice about arrangements for children after separation or If you have any questions and would like to speak with one of our solicitors, please contact us.

The court may make parenting Orders which include: –

• With whom a child lives with;
• With whom a child spends time with;
• With whom a child communicates with.

The paramount consideration is the best interests of the children.

The Family Law Act sets out various factors which must be taken into account and these include: –

• Ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent possible provided that is in the best interests of the child;
• Protecting the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence;
• Ensuring children receive adequate and proper parenting to help them achieve their full potential;
• Ensuring that parents fulfil their duties and meet their obligations regarding the care, welfare and development of their children;
• Children have the right to know and be cared for by both their parents regardless of whether or not their parents are married, separated, have lived together or not;
• Children have a right to spend time with and communicate with their parents and other people significant to their care, such as grandparents;
• Parents jointly share duties and responsibilities about the care, welfare and development of their children;
• Parents should agree about the future parenting of their children;
• Children have a right to enjoy their culture and to share that culture with other people who enjoy that culture.

These factors help the court decide what is in the best interests of the child.

Primary consideration

The benefit to the child of having a meaningful relationship with both of their parents.

The need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.

Additional considerations

• Any views expressed by the child (subject to the child’s maturity or understanding) that the court thinks are relevant.
• The nature of the relationship of the child with their parents and any other significant persons.
• The willingness and ability of the parents to facilitate and encourage a close and meaningful relationship between the child and the other parent.
• The likely effect of any changes in the child’s circumstance including a separation from a parent or other person with whom the child has been living.
• The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially effect the child’s right to maintain relations and contact with the child’s parent on a regular basis.
• The capacity of each of the child’s parents and any other significant person to provide for the needs of the child including the emotional and intellectual needs of the child.
• The maturity, sex, lifestyle and background of the child and of either parent and the characteristics of the child that the court thinks are relevant.
• If the child is an Aboriginal or Torres Strait Islander child then cultural considerations will be taken into account.
• The extent to which each of the child’s parents have fulfilled or failed to fulfil his or her responsibilities as a parent and in particular the extent to which each parent has taken or failed to take the opportunity: –
  • To participate in making decisions about major long term issues, spent time with the child and communicated with the child;
  • Has facilitated or failed to facilitate the other parent participating in making decisions about major long term issues in relation to the child, spending time with the child and communicating with the child;
  • Has fulfilled or failed to fulfil the parent’s obligation to maintain the child (paid child support);
  • Events that have happened and circumstances that have existed since separation.

The court must consider whether an Order providing that children spend equal time with both parents or significant and substantial time with both parents is reasonably practicable. In making a decision about whether an order is reasonably practicable, the court must consider: –

• How far apart the parents live from each other;
• The parents’ current and future capacity to implement an arrangement for the child spending equal time or substantial and significant time with each of the parties;
• The parents’ current and future capacity to communicate with each other and resolve difficulties that may arise in implementing such an arrangement;
• The impact that such an arrangement would have on the child;
• The particular circumstances of the case.

The court has a wide discretion. The court must make the order which is in the best interests of the child.

If there is an order in place and a parent wishes to make a change, then the parties can agree to change the Order.

If you have any questions or would like to speak with one of our solicitors, please contact us.