When faced with a parenting dispute, separation or relationship breakdown, a couple will need to navigate potential issues with respect to decision-making for the children of their relationship. The types of issues that can arise might include (without limitation):
- How major long term parenting decisions are to be made (such as decisions about schools, medical treatments, and religion);
- Who the children will live with;
- Who the children will spend time with (e.g. grandparents)
- What sort of activities the child should be taken to over the weekends;
- When and how parents will spend time with the child (e.g. parents rotate weekends with the children, arrangements for special days such as birthdays, Christmas, father’s and mother’s day, etc).
- Other peripheral matters that will help facilitate the arrangements – like communication protocols and changeover arrangements.
The Family Law Act refers to the concept of decision making for children as “parental responsibility”.
Whilst most parents are able to reach an agreement on parenting matters, there is the chance that agreement may not be reached and that the circumstances may require dispute resolution through Court processes. This article highlights the considerations the Court will have in resolving parenting disputes, and how parents might find a path forward without turning to litigation.
Starting Point – Presumption of Equal Shared Parental Responsibility
The law in Australia considers the child’s best interests as being of the utmost importance when dealing with Parenting Arrangements, and that it is normally in the interests of the child(ren) that they have a meaningful relationship with both parents. The amendments made to the Family Law Act 1975 (Cth) in 2006 reinforce this view.
When considering any parenting matter that involves decision-making on behalf of children, the Court MUST start by presuming that it is best for the children that both parents have equal shared parental responsibility – that both parents share the decision-making responsibilities and duties of raising their child equally. 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 especially important in cases where the parents cannot mutually agree on who will make the decisions for their children. However, the presumption is rebuttable, and the Court may use its discretion in deciding that it is not in the best interests of a child for both parents to make decisions together. This may arise in a range of circumstances – for example, where one parent has engaged in acts of domestic violence or child abuse against the child.
Sometimes a Court may 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 (such as health or education). If a parent has sole parental responsibility, a joint decision is not required.
Shared Time Arrangements (Equal, or Significant and Substantial Time)
If equal shared parental responsibility applies, the Court must consider making an order for the child to spend equal time with both parents. The Court will consider what is in the child’s best interests, and what is reasonably practicable in the circumstances.
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 prioritised over their parents’ interests. Equal time arrangements often work best where there is a high degree of cooperation between parents, good communication, and where the parents live in close proximity to each other.
If equal time arrangements are not in the child’s best interests, the Court will consider whether a significant and substantial time arrangement is a more appropriate path forward. These arrangements allow both parents involvement in the child’s daily routine and occasions of significance for both the child and the parent (e.g. birthdays, Fathers’/Mothers’ Days), across a mixture of both weekdays and weekends.
However, despite it being in the best interests for both parents to have equal shared responsibility and a shared time arrangement with the child, the court might choose not to order a shared time arrangement where such an arrangement would not be reasonably practicable. This might occur in situations where the separated parents live significant distances from each other and/or lack the finances to facilitate travel between each parent’s residence.
Resolutions Outside of Court
As previously mentioned, the normal situation often finds parents being able to resolve their parenting disputes themselves without court intervention. The Family Law Act 1975 (Cth) recognises two options that can help formalise such agreements.
1. Parenting Plan
A parenting plan is a document that is dated and signed by both parties and details an informal parenting arrangement. This document aims to provide written, shared solutions to the questions posed earlier in this article to provide the parties with clarity and certainty. However, parenting plans are unenforceable by courts, but will be persuasive if the matter ever goes to litigation.
2. Consent Orders
Consent orders are enforceable by courts, with penalties or potentially jailtime incurred upon breach. Consent orders are an agreement reached by the parents that has been filed in the Court (alongside other documents) that then becomes a Court Order.
