Parenting – the law

When parents separate, they need to try to reach agreement on where the children will live and, if they are living primarily with one parent, how much time they will spend with the other parent. Often it is not easy to reach agreement. Some of the most hard-fought struggles when parents separate are about the parenting arrangements. Furthermore, it is often the case that those arrangements need to be renegotiated over time, as changes occur in the lives of the parents or the children. The arrangements you might make when you are living 15 kms apart may well have to be different if circumstances change and you are living 150 kms apart – or even further.

The law does not specify that any one arrangement is better than another and the law does not even say that a parent has a right to spend time with his or her children. It all depends upon what is best for each child. It is unusual, of course, for a parent not to be allowed to see his or her child, but the law places a high priority on children’s safety.

So while the law does not say that any one arrangement is to be preferred, it does give some guidance to the courts if the judge has to decide the case.

General principles: The principles are that, unless it is contrary to a child’s best interests:
• children have the right to know and be cared for by both their parents;
• children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to them (such as grandparents);
• parents jointly share duties and responsibilities concerning their children;
• parents should agree about the future parenting of their children; and
• children have a right to enjoy their culture.

There is a difference between having parental responsibility and the arrangements for how much time the children will spend with each parent. Most parents agree to have equal parental responsibility, but that does not mean having equal time with the children. It all depends on what is best for the children.

Parental responsibility: This is about how major decisions are made concerning the children. What school will they attend? What religion, if any, will they be brought up in? Who should make decisions about medical treatment, especially in circumstances where a difficult decision has to be made whether to operate or not?

Parents have joint responsibility for their children, and this continues even if they are not living together, unless a court orders otherwise: see here. There is no need to get court orders about parental responsibility unless there is a disagreement about this. Without court orders, each parent continues to have the same rights and responsibilities as parents as they had before separation. They should talk together, and try to agree, on major issues, just as they would need to do if they were still living together.

Most parents who go to lawyers to get court orders typically agree to have what the law calls “equal shared parental responsibility” after separation. The law requires courts to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility unless there are reasonable grounds to believe that a parent of the child (or someone living with him or her) has abused the child or the parent has been violent. The section of the law is here.

Having equal shared parental responsibility means that each parent needs to consult the other person in relation to the decision to be made about major issues; and to make a genuine effort to come to a joint decision: see here. Major long-term issues include, for example:

                     (a) the child’s education;

                     (b)  the child’s religious and cultural upbringing;

                     (c)  the child’s health;

                     (d)  the child’s name;

                     (e)  changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.

Deciding how much time the child will spend with each parent

If a judge has to decide what the parenting arrangements should be, he or she will make a decision in the best interests of the child. There is no presumption that children should live mainly with their mothers, or mainly with their fathers. Nor is there any presumption that the children should spend an equal amount of time with each parent. It is all a question of what is best for the children in each case. It is far better that parents work this out for themselves, if they can do, even if it is difficult to reach an agreement.

If the parents will be sharing parental responsibility, the judge has a duty at least to consider whether an equal time arrangement might be the best and most practicable option, and if not, then the judge needs to consider whether an arrangement for “substantial and significant time” might work best. For a school-age child, that means time with the non-resident parent not only at weekends and in school holidays, but also some time during the week to help the parent be involved in the child’s daily routine.

The judge has to consider whether an equal time arrangement or one for “substantial and significant time” is reasonably practicable, as well as good in theory. In practice, a lot may depend on how far the parents live from one another. The judge will also need to consider whether the parents can cooperate and communicate sufficiently to make such an arrangement work, and other factors. The relevant law is here.

While the judge is required to consider these kinds of arrangements, the paramount consideration is what is best for the child. In deciding this, the judge will consider a long list of factors, which can be found here. The primary considerations that the judge must take into account 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 judge is required to give greater weight to the second factor than the first.