Upon separation, you and your former partner will need to consider how you would like to care for your children. Many couples are able to come to an agreement about how their children should be cared for and what is in their best interests. Where parents cannot reach an agreement, they may need assistance to reach an agreement or, as a last resort, need to have a court decide the matter. The same is true for parents who have never been in a relationship.
The Best Interests Considerations
When the Court is considering a care arrangement for children, its primary concern will be the best interests of the child. In deciding what is best for a child, the court must consider at least those matters set out in the legislation.
The legislation says there are two types of considerations; primary and additional. It is important to note that the primary considerations can be outweighed by the additional considerations, depending on the circumstances of the case.
The primary considerations for the best interests of a child are:
That a child has a meaningful relationship with both of its parents; and
That a child is protected from exposure to, or risk of exposure to, family violence and/or neglect.
In the event that those two considerations are in conflict (for example where there is an allegation of abuse of the child by one of the parents), the need to protect a child from neglect or abuse is more important and must be given more weight. This is because the first and most important consideration for any child is to keep them safe from harm.
There are numerous additional considerations including:
The wishes of the child. The Court will attribute weight to a child’s views, depending on the child’s age and maturity;
The nature of the child’s relationship with their parents and any other person connected with that child (including grandparents and step-parents);
The extent to which each of the child’s parents has taken, or failed to take, the opportunity to be involved in the care of the child;
The extent to which each of the child’s parents has taken, or failed to take, responsibility in meeting reasonable costs of the child;
The likely effect that any proposed change to a child’s care arrangement would have on the child, including separation from either parent, a brother or sister, another relative or any other person the child has lived with;
The practicability and expense of a care arrangement;
The maturity, gender, lifestyle and background of the child;
The importance of keeping the child connected to its cultural heritage;
The parent’s attitude towards the child and parenting generally; and
Any other factor that could be relevant to considering whether an arrangement for a child’s care is in the child’s best interests.
What is important to keep in mind when thinking about these considerations is the fundamental focus; the best interests of the child. One must place themselves in the shoes of the child and think about what is best for them.
What is an appropriate care arrangement?
Ultimately, it depends on what is in the best interests of the particular child or children. If you and the other parent have come to an agreement about care that allows for the children to maintain a safe and meaningful relationship with both parents, which allows for regular quality contact; if you seek a court order to put that into effect, the Court is likely to accept that arrangement. However, you do not need to have a court order; a court order is useful to help enforce your arrangement but it is not required and may be quite costly.
If you are having difficulties reaching an agreement about care of a child, you may wish to consider seeking legal advice.
In any event, parents of a child will normally end up with one of the following care arrangements:
Primary care to one parent with significant and substantial care to the other parent;
Primary care to one parent and limited contact with the other parent; or
Sole care to one parent.
Equal Shared Care
If you are in court, and the court decides both parents should have ‘equal shared parental responsibility’, then it has been decided that you must share decision making about major long term issues. If the court makes that order, then it must consider whether it would be practicable, and in a child’s best interests, for the child to spend equal time with both parents.
Practicability comes down to whether or not it would be easy for both parents to facilitate time between their two homes, as well as the child or children’s schooling and extra-curricular activities. This is normally proven if both parties live within a close proximity to one another or the child or children’s school.
If an equal care arrangement would be practicable, the Court then considers whether such an arrangement is in the best interests of the child based on the factors set out above. There is no right to equal shared time.
Equal shared care is often arranged by a child spending one week at a time with each parent, and sharing Christmas, Easter and birthdays with either parent. However, this arrangement can also be done on a 3-day/4-day rotation or any other arrangement that meets the definition of roughly half the time being spent with each parent. However, time is calculated by reference mostly to nights, so it is the number of nights that are used to calculate how time is divided. This is true for child support also.
While equal shared care will work for some children, it will not necessarily be the best arrangement for all children. For example, the parents’ work commitments, where they live, the child’s schooling, the child’s age and other factors may well suggest that some other arrangement is better for the child.
Primary Care with significant and substantial time to the other parent
Primary care of a child involves one party having the majority care of a child.
In circumstances where one parent has primary care of a child, the Court will be conscious that the child will have comparatively less time with the other parent. The child’s meaningful relationship with the parent without primary care must still be facilitated and maintained. Thus, the law says that if one parent has primary care of a child, then where it is in the best interest of a child to do so, the other parent ought to have significant and substantial time.
Significant and substantial time is characterised as being anything less than 5 or 6 nights a fortnight, including overnight time. This overnight time ought to take place both during weekends and weekdays, so that both parents are involved with a child’s regular schooling and recreational routine.
It is important that children are able to spend weekend time with both parents, as well as having both parents involved in their schooling and extra-curricular activities.
Primary Care limited contact with the other parent
In some circumstances a court may consider it is best that a child spends defined, and limited, time with the non-primary carer parent. There are a range of reasons why a court may reach this conclusion including:
Safety issues arising from family violence or mental health or drug related issues;
The parent is not well known to the child; and/or
The child does not wish to spend more time with the parent.
Where family violence is a factor, the Court may prefer that a child spends a little time with their other parent, but under supervision of a family member or, more commonly, a professional child care supervision service. For further information on supervision, see our “Supervision” tab.
Occasionally, a court will give all the parental responsibility for a child, including where the child lives and who they have contact with, to one parent alone. These are rare circumstances and only arise where there is no benefit, and possibly a danger, to the child in seeing the other parent.
When considering whether a parent ought not to have contact with a child, the Court still applies the best interest considerations. As noted above, whilst the Court has to consider the possibility of a meaningful relationship with both parents, it is more important that the child is protected from a risk of harm or abuse (if there is one).
Should you require any further information on the care of a child, or wish to explore care of your child in your particular circumstances, you ought to consider seeking legal advice or attending a family dispute resolution service.