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Parenting
The basics
When parents separate, arrangements need to be made for the care of your children. Parents will usually have equal shared parental responsibility by default, but in certain circumstances a Court can award one parent full parental responsibility. Parental responsibility is different from the practicality of how much time the children spend living with either parent. Parental responsibility means making major decisions about the children's lives, for example where they will go to school, what name they will use, and what religion they should adopt. If you and your ex-partner cannot agree to these arrangements, if you want your agreed arrangements to be put in writing, or you are just sick of things getting changed without warning and for no reason, you probably need legal advice.
Equal care, or weekends only?
Even though parents have equal shared parental responsibility, the time the children spend living with each parent may be different. While in many cases children spend equal week-day and weekend time with their parents, sometimes it is in the children's best interests to live with one parent and spend less time with the other parent, including for example alternate weekends, some but not all weekdays, or school holidays. It's very important to remember, however, the children's living arrangements after separation have to reflect what is best for the children, and not one parent's belief that they are "the better parent" and so the children should live with them.
What about grandparents?
It is not unusual for children to have developed close relationships with grandparents during a relationship. When families break up, it can sometimes be hard to keep that relationship going if the children live with the other parent. There are options for ensuring the children continue to spend meaningful time with their grandparents, even for ensuring the children live with the grandparents, if that is in the children's best interests.
The details
In working out what is in the children’s best interests, parents should must consider the list of factors set out in the Family Law Act. These factors include:
- Primary considerations:
- the benefit to the children of having a meaningful relationship with both parents; balanced with
- any need to protect the children from abuse, neglect or family violence. If relevant, this need to protect is given more weight than the benefit to the child of a meaningful relationship.
- Other considerations:
- any views that the children may have, depending upon their maturity and level of understanding;
- the nature of the relationship between the children and both parents, their siblings, and any other people in the family such as grandparents;
- the capacity of either parent to provide for the children’s needs, including intellectual and emotional needs;
- whether the parents have both been involved with the children and with making decision for the children;
- the extent to which the parents have complied with their duty to maintain the children; and
- whether there is any family violence or child abuse.
Parents automatically have shared parental responsibility for their children, but the Courts have the power to make orders to remove or limit parental responsibility. Shared parental responsibility means both parents share all the rights, duties and responsibilities that parents have with respect to the children. The parents must consult with each other when making decisions about major long-term issues such as education, religion, major medical treatments, names changes and changes in the children’s living arrangements.
However, equal shared parental responsibility does not automatically mean equal time with each parent. A number of factors influence whether an equal shared care arrangement is suitable, including whether or not the child spending equal time with each parent is in the child’s best interests, and whether or not spending equal time with each parent is reasonably practicable. Relevant factors can include:
- Where the parents live in relation to one another;
- Where the children attend school or day care;
- The support available to either parent in the form of grandparents or other carers;
- Whether the party’s ability to co-parent would be compatible with an equal shared care arrangement;
- The parent’s ability to implement the equal shared care arrangement; and
- The impact of the arrangement on the child.
If equal shared care is not suitable, the Family Court must then consider whether the children spending substantial or significant time with each of the parents is reasonably practicable. Substantial and significant time includes days that fall on weekends and holidays as well as other days that allow the parents to be involved in the children’s daily routine, and occasions that are significant to the parents and the children such as Christmas, other important religious or cultural events, and birthdays.
Parenting orders (whether made by a Judge after a trial, or by consent between the parents) create binding obligations on both parents. Failing to comply with parenting orders can result in serious consequences. With older children, difficulties can arise when the children simply refuse to spend time with the other parent. Blame can be attributed to a parent even if that parent is doing all they can to encourage the children to see the other parent.
Under family law, parties in dispute about parenting arrangements must first try mediation (unless certain, complex circumstances exist for example domestic violence, or if the children have been taken without consent). Through mediation, the parties can agree to a written parenting plan or, if they want the agreement to be binding, make an application for consent orders.
If there is still no agreement, then the parties can start proceedings and have the Court decide. Disputes about parenting will be governed by the Family Law Act. The Court will determine what will be in the children's best interests, and this usually means having a meaningful relationship with both parents subject always to the health and safety of the children, and protecting the children from neglect, abuse, or family violence.
Going to Court is usually very expensive, and many people just can't afford this option. If you are in dispute about parenting arrangements, please contact us for a confidential chat about your options (free of charge). It might save you and your children having to go through a very lengthy, difficult, and expensive trial!