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No matter what happens when you separate from your partner, your children must remain your priority. With emotions running high, and crisis mode has begun, you will at some point focus on yourself. It is natural to do this. A relationship that you have had with a person you love or once loved has ended. You will feel a sense of loss. There will be times when you can think of nothing but getting through the pain you are suffering.
There will also be times when your partner is behaving badly and you want nothing more than to match them with their taunts and accusations. Don’t. It’s not worth it in the long run.
There is a greater need for certainty in post-separation arrangements when there are children involved. There are a range of considerations and it is wise to consult an experienced family lawyer as the legal process involved in determining a parenting agreement can be complex.
What the law says about parenting matters
The law recognises the importance of providing stability and a positive environment for children and the Family Law Act sets out the way in which the law ensures the best interests of the child are protected.
Part 7 of the Family Law Act 1975 sets out the legal framework to be applied when dealing with your parenting matter. It is the framework and rules that the court applies. It is also the framework and rules that your lawyer must apply when giving you advice or managing your case with you.
The objects and principles of Part 7 of the Family Law Act are set out in section 60B.
The objects are to ensure that the best interests of children are met by:
a) 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; and
b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying these objects are:
a) 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; and
b) 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); and
c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
d) parents should agree about the future parenting of their children; and
e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
The objects and principles are subject to the proviso that they should apply, except if it would not be in a child’s best interests to do so.
How do you determine the children’s best interests?
The factors which assist the court in determining what is in a child’s best interests are set out in Section 60CC. Those factors are broken up into primary considerations and additional considerations.
The primary considerations are:
a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
These primary considerations were amended in 2012 following the introduction of significant reforms relating to family violence. It is for this reason that in applying the above two considerations, the court must give greater weight to the need to protect the child from harm, that is the second consideration.
There are a number of additional considerations which must be considered, some of which include:
- any views expressed by the child balanced with the child’s maturity and level of understanding;
- the child’s relationship with each of their parents and significant others;
- the effect any changes to the child’s circumstances might have of the child;
- any practical difficult or expense involved with the child spending time with either of the parents;
- the parents capacity to provide for the needs of the child;
- the right to enjoy Aboriginal child or a Torres Strait Islander culture;
- family violence.
Which factors the court will consider in a matter will depend on the particular circumstances of each case. It is helpful to get legal advice before raising issues in court as some factors will be more relevant than others depending on the circumstances and it may be wise to exercise discretion.
How do you make decisions for your children?
The Family Law Act states that each parent has parental responsibility for a child under the age of 18 years (61C) and that parental responsibility means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children (61B).
Importantly there is a presumption that it is in the best interests of a child for the parents to have equal shared responsibility (61DA). This is not a reference to equal time. It is a reference to making big decisions about your child together. Big decisions include things like where your children will go to school, whether your children need significant medical intervention, the religion your children will practice and what name your children will be known by. Big decisions also include a decision to move further away from the other parent making it more difficult for the children to spend time with that other parent. These issues are called “major long-term issues”. A parent’s decision to enter into a new relationship is not a major long term issue.
Less important decisions that are made on a daily basis will not require a joint decision or consultation. These include decisions about daily activities like when bedtime is, or what the children should eat (unless there is an agreement about those things due to an allergy or intolerance).
This presumption for equal shared parental responsibility can be challenged in limited circumstances, depending on the circumstances of your matter. The presumption does not apply where there has been abuse of the child or another child who was a member of the family; or family violence.
What about the time your children spend with each parent?
The court sets out a reasonably straight forward but very wordy framework for determining the living arrangements for children. The framework is based on the presumption of equal shared parental responsibility being applied either by agreement or court order.
In essence, the Family Law Act in section 65DAA says the following:
- if the parents are to have equal shared parental responsibility for a child then the court must consider whether the child spending equal time with each of the parents is in the best interests of the child and reasonably practicable, and if so, make an order for equal time;
- if not, then the court must consider whether the child spending substantial and significant time is in the best interests of the child and reasonably practicable, and if so, make an order for substantial and significant time;
- if not, then the court must consider making such orders having regard to the best interests of the child.
Substantial and significant time will involve time spent with the other parent on weekdays, weekends and holidays. The amount of time each parent spends with the child should allow them to be involved in both daily routines and significant events. In essence most types of days for a child are covered including holidays, birthdays, Christmas and other special days. This reflects the laws attempt to make sure that both parents are able to be involved in their child’s life in a variety of ways.
The court will also consider whether the arrangements are reasonably practical by looking at factors such as:
- the distance between the parents houses;
- each parent’s capacity to implement the arrangements;
- each parent’s current and future capacity to communicate with each other if difficulties arise;
- the likely impact of the arrangements on the child.
So what does this all mean?
Before you start to worry about your very young children spending equal time with both parents or whether your teenager will cope better living in just one household through years 11 or 12 there are some things you should keep in mind.
Whilst it is not explicit in the sections set out above, the age of the children is important. Firstly, there is no magic age at which your child can decide the living arrangements. By law, a child is a child until they turn 18 years and you as the child’s parents make decisions about them until they turn 18.
Secondly, all of the arrangements set out in the framework above are subject to the best interests of the child. Further consideration of whether arrangements are reasonably practical provides for an assessment of the impact the arrangements will have on the child. This means that if it is not in the best interests of a new born or very young child to be away from their primary carer or the impact on the child will be to their detriment, then it is unlikely that a court will make that order.
Ultimately each parenting matter is different. There is no stock standard one size fits all answer to what your parenting arrangements should be. If as parents you cannot agree about what the arrangements for your children should be then it is really important that you get some advice about your particular circumstances.