Who gets “Custody” of a child is a question often asked of our Family Lawyers. In working through who makes decisions about the child, where the child lives and how much time they spend with the other parent or other persons the Court has long abandoned the terms “Custody” and “Parental Rights”. The child has all the rights. The parents have all the responsibilities. Today, the Court’s paramount consideration is the best interests of the child. Over time the Family Law Courts have adopted a legislative pathway in determining parenting cases and this series of articles will briefly cover each step.
How the Court determines time arrangements in a parenting case is greatly affected by whether or not an Order for equal shared parental responsibility is ordered. Equal shared parental responsibility was discussed in our article last week.
According to the Family Law Act 1975 (Cth)(“The Act”), when an Order for equal shared parental responsibility is made the Court must consider making an order for equal time with both parents. This presumption does not apply if equal time is not in the best interests of the child or if equal time is not reasonably practicable. We have spoken about how a Court determines what is in the best interests of a child in the first article of this series.
The Courts and the Act say that “reasonably practicable” means the Court must have regard to:
- How far the parents live apart;
- Parents’ current and future capacity to implement that time arrangement; and
- Parents’ current and future capacity to communicate with each other and resolve difficulties of that arrangement.
Substantial and significant time
If equal time is not in the best interest of the child or is not reasonably practicable the Court must then consider making an Order that the child spend substantial and significant time with each parent. Time with the child is considered by the Court to be substantial and significant if the time:
- Includes day on weekends and holidays; and
- Includes days not on week days and non-holidays;
- Allows the parent to be involved in the child’s daily routine; and
- Occasions that are of particular significant to the child; and
- Occasions that are of special significance to the parent.
If substantial and significant time is not in the best interests of the child or is not reasonably practicable the Court may make orders regarding time as it sees fit if it is in the best interest of the child.
We recommend you read this article and the last two together to get a basic overview of how a Court considers parenting matters. Parenting cases are a difficult and delicate type of family law case, If you are having issues with another parent about parenting arrangements for a child, call our expert family lawyers now on 4324 7699.