Parenting matters are particularly sensitive and, despite most people having a genuine desire to implement arrangements that are in a child’s best interests, parties often have conflicting views of what that is, or how the law determines a child’s best interests.
Under the Family Law Act, parents have equal shared parental responsibility as a presumed starting point. Parental responsibility refers to the burden allocated to a parent to make decisions in relation to long term issues relating to children. This includes, but is not limited to, things such as:
- The children’s name (or any changes to it);
- What religion the child is raised or educated in (if any);
- Which school a child attends;
- How or whether a child is medicated.
The default position is; that parents share that responsibility equally and must agree about those major long-term decisions. However, issues can arise when parents are unable to agree.
A Court will generally only order that one party has sole parental responsibility where there is significant conflict between the parents or there are serious allegations of or evidence of abuse, neglect or family violence.
If equal shared parental responsibility applies, the Courts must consider:
- whether it is in the best interests of the children to spend equal time with each of the parents; and
- whether spending equal time is reasonably practicable.
If those conditions are satisfied, then the Court must consider making an Order that the children spend equal time with each parent.
However, if the Court is not satisfied that both of those requirements are met, they must then consider:
- whether substantial and/or significant time with one parent should be ordered to occur; and
- whether it is reasonably practicable for the children to spend substantial and significant time with that parent.
This will include a consideration of both weekday and weekend time as well as holiday and non-holiday time. This enables both parents to be involved in a child’s day to day routine and special events.
The legislation sets out a significant number of considerations which the Court must take into account in determining what the child’s best interests are. Section 6CC of the Family Law Act set these out if you would like to examine them further.