When faced with a parenting dispute, there are a number of issues that a couple would have to deal with regarding decision making. The disputes would normally fall into one of the three categories of issues below:
- Who makes decisions for a child;
- What the daily living arrangements are for the child; and
- Other peripheral matters that make things work – like communication protocols and changeover arrangements.
The Family Law Act refers to the concept of decision making for children as “parental responsibility”.
In any decision making regarding children, the Court MUST start the process of litigation by presuming that it is best for children to have both parents involved in making decisions together. This is especially in cases where parents can’t decide on who makes decisions for children. However, joint decisions would not be considered by the Court if there is evidence of child abuse or domestic violence. Despite this initial presumption, the Court can decide that it is not in the best interests of a child for parents to make decisions together in other circumstances also.
The Court may order that parents should have equal shared parental responsibility. This means that if a decision has to be made about a major long term issue, like schooling or medical matters, the parents need to share information and try to come to a joint decision. Although, unless there is an emergency, making decisions regarding major long term issues should not be made by one parent without consultation with the other parent.
In some cases, the Court may make an Order that a parent has sole parental responsibility, or that they have sole parental responsibility in relation to certain aspects of the child’s life, for example, health or education. If a parent has sole parental responsibility, there is no need to come to a joint decision.
If you are trying to navigate your way through a parenting dispute, one of the most critical issues to sort out is who makes decisions for your children, and how. It’s important to get legal advice about this as soon as possible.
Decision Making after a Separation and equal shared responsibility
When parents separate, this could be a difficult time for families, particularly where there are children involved. The law in Australia considers the child’s best interests as having the utmost importance when dealing with Parenting Arrangements.
Common disputes between parents include who makes decisions for the children and the amount of time the child will spend with each parent.
The Court considers that in most cases there is benefit for a child to have a meaningful relationship with both parents. The 2006 amendments strengthened that concept and were implemented with the goal of increasing the number of families where both parents had a significant role in the parental duties.
1. What is Equal Shared Parental Responsibility?
– Equal shared parental responsibility means that both parents share the decision making responsibilities and duties of raising their child. This means that both parents must share information with each other and make decisions together in relation to important life decisions for the child, such as the child’s education, religion and name.
– The presumption is that equal shared parental responsibility applies, unless there are reasonable grounds to believe that a parent has engaged in domestic violence or child abuse.
– The presumption can also be rebutted, if a party can show that it would not be in the best interests of the child for the other parent to have equal shared parental responsibility.
2. Equal Time Arrangements
– If equal shared parental responsibility applies, then it is a requirement that the Court consider making an order for the child to spend equal time with both parents.
– In coming to this conclusion, the Court will have to consider what is in the child’s best interests, and whether it is reasonably practicable for there to be an equal time arrangement in place.
– A valid presumption of equal shared parental responsibility does not immediately equate to an equal time parenting arrangement. While it may be in the best interests of a child for parents to have equal shared parental responsibility, it may not be in the best interest of the child for the parents to have equal time.
– The Court must consider how an equal time arrangement will impact on the child’s wellbeing. In these considerations, it is the child’s best interests that are paramount, and it is their interests that will be prioritised over the interests of their parents.
– If it isn’t in the child’s best interests to spend equal time with their parents, the Court must then consider whether a significant and substantial time arrangement is a more appropriate arrangement.
– Significant and substantial time is a time arrangement which allows both parents to be able to be involved in the child’s daily routine and occasions of significance to both the child and the parent, in a mixture of both weekdays and weekends
– Equal time is most likely to work where there is a high degree of cooperation between parents, good communication, and where the parents live in close proximity to each other.
3. Reasonably Practicable
– Even if there is a valid presumption of equal shared parental responsibility, and it is in the best interests of the child to have an equal time arrangement, the Court may not order an equal time arrangement, or a significant and substantial time arrangement, because such arrangements fail to be reasonably practicable.
– For example, the separated parents may live a significant distance from each other or may even lack the finances to support their child’s frequent travel between the homes of both parents.
TIPS FOR PARENTING ARRANGEMENTS
It is important to keep the following in mind:
- If there is a risk or a history of domestic violence or child abuse you should let your lawyer know immediately.
- Do not attempt to change your child’s education, childcare or living arrangements unless there is a risk to the health or safety of your child. We recommend you get legal advice about this first, if possible, as this may influence any court decision in the future.
- Keep a diary.
- Obtain legal advice from a lawyer who practices in Family Law.