Determining care arrangements for children of separated parents

Paramount consideration – best interests of the child

In deciding whether to make a particular parenting order in relation to a child, the Family Court regards the best interests of the child as the paramount consideration. In determining what is in the child’s best interests, the Court has primary and additional considerations.

The primary considerations are 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. The need to protect the child takes precedence over the benefit of them having a meaningful relationship with both parents.

There are fourteen additional considerations which include, but are not limited to:

views expressed by the child and any factors relevant to the weight of those views;
the nature of the relationship of the child with each of the child’s parents;
the extent to which each of the child’s parents has taken the opportunity to participate in making decisions, spending time with and communicating with the child;
the capacity of each of the child’s parents to provide for the emotional, intellectual and financial needs of the child; and
the maturity, sex, lifestyle and background of the child and its parents.

Reasonable practicability

When determining the care arrangements of a child, in addition to looking at their best interests, the Court looks at the reasonably practicability of that arrangement which includes the following factors:

how far apart the parents live from each other;
the parents’ current and future capacity to implement the care arrangement;
their capacity to communicate with each other and resolve difficulties that may arise in implementing the care arrangement;
the impact that the care arrangement would have on the child; and
other matters as the court considers relevant.

The pathway

The pathway for making an order with respect to who a child is to spend time with and live with is as follows:

Can an order for equal shared parental responsibility (ESPR) can be made?

Each of the parents have parental responsibility. Parental responsibility means all the duties, powers, responsibilities and authority which, by law, parents have in relation to that child. For example, the name of the child, the school which the child attends, the religion of the child and any major medical procedures which the child undergoes.

When making a parenting order the Court must apply a presumption that it is in the child’s best interests for their parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that family violence has occurred.

If an order for ESPR is made, is equal time in the child’s best interests and reasonably practical?

Equal time is as it sounds, the child spends time with each parent on a 50/50 basis. What many parents often do not realise is that whilst equal time is typically represented on a week about basis, it does not necessarily need to be arranged in that way.

Equal time is less common than substantial and significant time. Separated parents often find it difficult to co-parent. Separated parents may understandably want to live some distance away from one another. Their work commitments often limit the time at least one parent has available to care for the child and carry out school pick up and drop off. The child often (but not always) has a primary attachment to one parent.

If equal time is not in the child’s best interests or reasonably practical, is substantial and significant time?

Substantial and significant time involves the child spending time with the non-resident parent on week days, weekends, during the holidays and on special occasions. In our experience, substantial and significant time is the most common arrangement between parents.

By virtue of the fact substantial and significant time includes both parents spending week days and weekends with the child, care arrangements are typically spoken about in terms of a fortnightly roster.

If substantial and significant time is not in the child’s best interests, what orders are?

There are many reasons why equal time or substantial and significant time may not be appropriate. Typically these situations involve family violence, alcohol or drug abuse or the fact that the parents live in separate states or countries.

With respect to situations involving family violence and alcohol or drug abuse, it is not uncommon for the accused parents time with the child to be supervised by a supervision agency on an interim basis so that risk can be assessed. With respect to alleged alcohol or drug abuse, it is not uncommon for care arrangements to be conditional upon regular and ongoing clean drug urine or hair tests.

In severe circumstances, where there is serious risk of harm to the child, it may be ordered that the abusive or drug addicted parent have no contact with the child.

Age & maturity of the child

The views of a mature child are more significant than an immature child when determining their care arrangements.

We are often asked whether there is an age at which a child is deemed ‘mature’ or when their views are considered. The short answer is no. Practicality, children of a middle to senior high school age “vote with their feet”. It can be difficult to enforce formal care arrangements upon children of that age who may, despite best efforts, do as they please.

On the other end of the spectrum, for toddlers, arrangements typically include more frequent shorter periods of time. It is often difficult (and unwise) to make final care arrangements for toddlers.

Next steps

If you would like advice as to appropriate care arrangements for your child or would like to formalise an agreement between you and your ex partner, we welcome you to make an appointment with a solicitor from our office.