A concern for many parents is how to achieve a suitable parenting arrangement after separation (previously termed as “child custody” in Australian Law).
By law, both parents are legally responsible for their children. In other words, parents have all the duties, powers, responsibilities, and authority in relation to their children (known as “Parental Responsibility”) and the responsibility does not cease post-separation. With this said, the Court also has a duty to ensure that the best interests of the child are upheld when considering a suitable parenting arrangement.
Paramount Consideration – Child’s Best Interests
There are two primary factors the Court considers when determining a child’s best interests, that is:
- The benefit of a child having a meaningful relationship with both their parents; and
- The need to protect the child from physical or psychological harm or being exposed or subjected to abuse, neglect or family violence.
The Court also has the discretion to consider additional factors when determining a suitable parenting arrangement, including a child’s views, nature of the relationship with the parent and the practical difficulty and expense of a child spending time and communicating with a parent.
Process of Determining Parenting Agreements
With the paramount consideration in mind, the Court first applies a presumption of Equal Shared Parental Responsibility when making a parenting order. If this presumption is applied, then both parents have responsibility for the major long-terms decisions concerning the child, such as being involved in choosing the child’s school. This presumption does not apply if a parent has engaged in family violence.
The next question is to determine the amount of time a child is to spend with a parent, whether that is equal time with both parents or substantial and significant time with one parent. The Court is therefore guided by the paramount consideration (the best interests of the child) when allocating the amount of time between parents.
Examples of Parenting Agreements (Orders)
Below are just five examples of parenting agreements (Orders):
1. Equal Time – Consistent 7-night block
In circumstances where the parents live within a reasonable distance of each other, have work flexibility and where there is good communication and cooperation, parents may consider a week about arrangements for their children, for example one week with the Mother and the other week with the Father.
Parents should also be mindful that this arrangement is unlikely to work where the children are of younger age or where the children have a demanding lifestyle, such as being involved in multiple extra-curricular activities.
2. Equal Time – Other
Parents may find that a consistent 7-night block per fortnight may not suit their schedule, however, would still prefer the 7 days per fortnight with their children.
If it is still practicable and in the best interests of the children, the 7-night block per fortnight may be altered. An example being that the Father spend time with the children at the conclusion of school on Thursday in the first week to the start of school on Monday in the second week and from the conclusion of school on Tuesday in the second week to the commencement of school on Friday in the second week.
3. Substantial and Significant Time
This is an arrangement where the children live primarily with one parent and spend substantial and significant time with the other parent. A parent who spends substantial and significant time with the children means time spent on days that include (and do not include) weekends and holidays. This arrangement allows a parent to be both involved in the children’s daily routine and special occasions that are of particular significance to the children, such as birthdays and Christmas.
4. Infants and Young Children
In circumstances where the child is quite young, parents should consider an arrangement that provides stability and routine for the child (for example, a consistent eating and sleeping routine). For the parent who does not live with the child, it is not uncommon to spend more day-time and limited overnight time until the child is more mature, nor is it uncommon for overnight to slowly increase over time provided that this is in the best interests of the child.
5. Telephone / Video Time / Skype
During the COVID-19 pandemic, it has become more important to find ways to ensure that each parent can spend time with their children in a safe and healthy environment. Parents may consider incorporating further telephone and video time into their parenting arrangements, for example including specific days and times in which one parent may telephone or facetime their children.