Living with Responsibility

May 7th, 2012

by Adam Bak

Concepts in the law regarding children – article by Adam Bak, solicitor at Farrar Gesini & Dunn

In 2006, the Federal Government changed the Family Law Act to introduce a change in the way children’s cases were determined. The changes move away from traditional concepts of “custody” and “access” towards a more modern and co-operative system of “live with”, “spend time with”, “communicate with”, and importantly, “parental responsibility”.

The underlying principle of the parenting provisions in the Act remains that the Court must do what is in the best interests of the child. There are a number of factors the Court must take into account, most notably, the benefit to the child of having a meaningful relationship with both parents, and the need to protect the child from harm, abuse, neglect and violence. Under Australian law, there are no presumptions about how much time a child should spend with each parent. There are, however, a number of considerations that the Court must take into account. While many cases still result in child living with each parent equally, such as a week-about arrangement, the majority of cases do not. In circumstances where the parents cannot communicate, or when the parents are geographically apart, the Court can still provide for the parents to share parental responsibility, whereas the child clearly lives with one parent and spends time with the other. Parents still commonly confuse the various terms, which, despite seeming simple, may have a legal meaning that extends beyond their ordinary connotation. The way that a Court must now determine a parenting dispute is as follows:
1. The Court must begin with the presumption that it is in the best interests of the child for both parents to have equal shared parental responsibility. This means general parenting duties, powers and responsibilities, including decisions about education, health, religion, etc. In most cases parents agree that they will continue to have joint parental responsibility. However the presumption is rebuttable in cases where there is evidence of violence, or a risk of harm, or where a court decides that for other reasons it would not be in a child’s best interests.
2. If the Court has decided that equal shared parental responsibility should continue, the Court must then consider the possibility of the child spending equal time with each parent, and whether or not this is reasonably practicable.
3. If the Court has determined that it is not reasonably practicable for the child to have equal time with each parent, the Court must consider the possibility of the child spending substantial and significant time with each parent, and whether that is reasonably practicable. “Substantial and significant time” is a vague term, but includes weekdays and weekends and might be an arrangement between 3 and 5 nights per fortnight with the parent the child does not live with. The intention is that both parents should have the child on school nights, weekends and holidays.