One of the key objects of the Family Law Act 1975 (Cth) (FL Act) focuses on the importance of both parents playing a meaningful and active role in the lives of their children after they have separated.
Section 60B of the FL Act provides that this objective is best met by:
- ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child;
- protecting children from physical or psychological harm and from being subjected to, or exposed to, abuse, neglect or family violence;
- ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
- ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 60B(2) of the FL Act further provides that (except when it is or would be contrary to a child’s best interests):
- children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together;
- children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives);
- parents jointly share duties and responsibilities concerning the care, welfare and development of their children;
- parents should agree about the future parenting of their children; and
- children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Under the legislation, both parents are presumed to have equal parental responsibility for any child they have together, unless a parenting order or parenting plan otherwise allocates parental responsibility to meet the best interests of the child.
In certain circumstances, a court may allocate parental responsibility to one parent only. In such instance, that parent is solely responsible for making decisions about any major, long term issues affecting the child.
If, on the other hand, there is a dispute between the parties about the allocation of parental responsibility and a court makes an order that the parties should have equal parental responsibility, they must then consult and agree with one another in relation to all major, long term issues and decisions affecting their child.
“Major, long term issues” affecting a child may include (but are not limited to) such matters as:
- Where the child will live;
- The child’s health and any medical treatment she or he requires;
- The child’s education;
- Any religious practises or observances which the child may be required to participate in or be affected by;
- The child’s name;
- Any social conduct or interaction affecting the child;
- Any changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent;
- The child’s passport;
- Protection of the child from harm; and
- Any other issue affecting the long term care, welfare and development of the child.
It is important to understand that the allocation of parental responsibility is separate from the issue how much actual time a child will spend with her or his parents.
A court will not necessarily grant a person equal time with their child (‘50/50 custody’) simply because they have (or are granted by the court) equal shared parental responsibility of the child.
Despite this, a finding of equal parental responsibility is significant, and s65DAA(1) expressly states that when “a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must [also]:
- consider whether the child spending equal time with each of the parents would be in the best interests of the child;
- consider whether the child spending equal time with each of the parents is reasonably practicable; and
- if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.”
When a court is asked to decide on whether to allow a parent to have equal time with their child, it will regard the child’s best interests as the most important consideration in determining the issue. The court will also consider whether it is reasonably practicable for the parent(s) to have equal time with their child.
In determining these issues, the court will look at such things as:
- 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 parents;
- the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
- the impact that an arrangement of that kind would have on the child.
Should the court decide that equal time with each parent is not in the child’s best interests and reasonably practicable, it must then consider whether an order for the child to spend substantial and significant time with a parent is in the child’s best interests and reasonably practicable, having regard to the same rules which govern a determination about equal time.
In certain limited circumstances, the court may also determine that it is in the child’s best interests to spend supervised or no time with a parent, usually when the child has been, or is at risk of being, exposed to abuse or family violence.
We understand the difficulties associated with disputes regarding the allocation of parental responsibility and the time that you wish to spend with your child.
We are able to advise you on whether your situation should allow you to appropriately assert an entitlement to equal time with your child or, in the alternative, substantial and significant time.
We will assist you to reach agreement with the other party regarding the time that each or either of you will spend with your child, and any other matters relating to the care and welfare of the child. We are able to formalise and document the agreed arrangement in terms which are both enforceable by a court and appropriate to your specific circumstances.
If such agreement cannot be reached by consent between you and the other party, we may advise and represent you through the court process to ensure that your child’s best interests are served.
If, on the other hand, you already have parenting orders in place and you are concerned that the other party is acting in a manner which is contrary to those orders, we can assist you to enforce the orders in the appropriate forum.