Key things to know in parenting matters
While we could go on and on about the law, what you are probably looking for at this point is some key information to get you started. The Family Law Act provides lots of information about arrangements for children and the steps to be applied. It also sets out really important principles to keep in mind. We summarised the key things to know here.
- The language used in family law has changed over the years. In the early days custody (who the child lived with) and visitation (the other parents time) were the key words. This then changed to residence and contact. Now the terms are a bit more wordy – who the child lives with and how they spend time and communicate with the other parent. We like to think of the arrangements collectively as “living arrangements” where the children live at both homes in all different types of arrangements.
- It is important that children have the benefit of both parents having a meaningful involvement in their life, provided it’s consistent with their best interests, because children have a right to know and be cared for by both parents;
- Children need to be protected from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;
- It is important that children receive adequate and proper parenting to help them achieve their full potential and that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children;
- 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);
- The best interests of children are determined first by considering the benefit to the child of having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (these are called the primary considerations).
- Other additional considerations are the views of the children (keeping in mind their level of maturity and understanding), the children’s relationship with their parents and others, the effect that changes to a child’s circumstances will have on the child, any practical difficulty or expense involved in the living arrangements, the parents capacity to provide for the needs of the children, matters of culture, and any issues of family violence.
- There is a presumption that it is in the best interests of a child for the parents to have equal shared parental responsibility. 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”.
- Day to day issues about children do not always need both parents to consult or agree. 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).
- The 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.
- 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.
- Equal time is not the automatic arrangement in all separated families. It is a consideration but it must be appropriate for the children having regard to their best interests, and some of those key points we’ve referred to above. Equal time must also be reasonably practicable, that is you need to consider how far apart the parents live, whether they can communicate effectively and the impact of that arrangement on the children.
- If equal time isn’t right for your children, then consider substantial and significant time which includes time on weekdays, weekends and holidays. It also includes, special days, holidays, and an ability of parents to be involved in children’s routines.
- 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. As children get older, more importance is given to their views, though it will always depend on their level of maturity and how they have come to form those views.
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.