In parenting proceedings before, pursuant to the Family Law Act 1975 (Cth) (as amended) (“the Act”), the Family Law Courts in Australia Courts are required to apply a rebuttable presumption that it is in the child’s best interest for the parents of the child to have equal shared parental responsibility for the child. This applies unless there are reasonable grounds to believe a parent of the child, or a person who lives with a parent of the child, has engaged in abuse of the child, or another child in the family, or family violence (see sections 61DA(1) to 61DA(3) of the Act).
Whilst the allocation of parental responsibility does not automatically determine the amount of time a child is to spend with either parent, it does guide the Family Law Courts in their considerations of what time arrangements they must consider for the child, as follows.
Equal Time
If parents have equal shared parental responsibility for a child the Court must consider whether making an order for the child to spend equal time with the parents is both in the best interests of the child and reasonably practicable. If the Court is satisfied that both of those grounds are met, the Court must consider making an order for the children to spend equal time with each parent (see section 65DAA(1) of the Act).
Equal time ordinarily manifests as a week in a situation where the child lives Sunday to Sunday, or Monday to Monday, with each parent on a rotating weekly basis. However, week about is not mandatory and families or the Court may choose alternate albeit equal care arrangements.
Substantial and Significant Time
If parents have equal shared parental responsibility, but the Court doesn’t make an order for equal time as outlined above, the Court must consider whether making an order for the child to live with one parent and spend substantial and significant time with the other parent is in the best interests of the child and reasonably practicable. If the Court is satisfied that both of those grounds are met, the Court must consider making an order for the children to live with one parent and spend substantial and significant time with the non-resident parent (see section 65DAA(2) of the Act).
Substantial and significant time means that the child spends time with a parent at times that includes and allows, but is not limited to (see 65DAA(3) of the Act):
- both days that fall on weekends and holidays, and days that do not fall on weekends and holidays;
- the parent to be involved in the child’s daily routine, and occasions and events of particular significance to the child;
- the child to be involved in occasions and events of particular significance to the parent
Orders for substantial and significant times usually involve situations when the children live with one parent and spend each alternate weekend (including after school Friday and/or before school Monday), a time during school holidays and time on special occasions with the other parent.
Best Interests of the Child & Reasonably Practicable
Importantly, decisions as to what care arrangements should be put in place for a child will always be centred upon whether those arrangements are in the best interests of the child. The considerations to determine that are outlined in section 60CC of the Act. There are multiple factors including the views of the child, the relationship the child has with each parent and other persons and how a change in circumstances might affect the child.
To determine whether an arrangement is reasonably practicable the Court must have regard to:
- how far apart the parents live from each other;
- each parents’ current and future capacity to implement an arrangement of the type being considered;
- the parents’ current and future capacity to communicate and resolve difficulties that might arise in implementing an arrangement of the type being considered;
- the impact an arrangement of the type being considered would have on the child; and
- any other matters the Court considers relevant (see section 65DAA(5) of the Act).
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