It is not uncommon when parents separate for one party to move out of the family home, while the other stays living in the home with the children. While this might be the simplest arrangement immediately following separation, it is not always agreed that this should be the long term arrangement for the children. Here we look at what factors need to be considered when deciding how the children are cared for, where they live and who with, how decisions concerning the children are made, and how the law guides this process for separated parents.
Parental responsibility refers to a parent’s (or carer’s) ability to make decisions about a child’s long-term care, welfare and development. These are referred to as major long-term issues, and include decisions about a child’s education, religious and cultural upbringing, health, name, and living arrangements which make it more difficult for the other parent to spend time with the child.
The Court can make any of the following orders in respect of parental responsibility (whether the Court makes the decision, or the order is made by agreement between the parents):
1. an order for equal shared parental responsibility, meaning that the parents must make decisions about major-long term issues jointly;
2. an order that one party have sole parental responsibility about a specific issue or all issues, meaning that one party can make a decision about those issues unilaterally; or
3. an order for the parents to have a combination of shared and sole parental responsibility.
The Court presumes from the outset that an order for equal shared parental responsibility is in the best interests of the child, unless it is established there are reasonable grounds to believe that a parent has engaged in family violence or abuse of the child or there is evidence that such an order is not otherwise in the child’s best interests.
It’s important to remember that an order for equal shared parental responsibility relates only to major long-term issues, and does not mean that the parents must jointly make decisions about day-to-day matters such as a child’s diet or clothing.
Once it has been decided who has parental responsibility for the child, the child’s time/living arrangements with each parent is considered. In doing so, the Court will consider one overarching principle: what is in the “best interests” of the child. It’s important to remember that when determining what is in the best interests of a child, the primary considerations are: firstly, the benefit to the child of having a meaningful relationship with both parents; and secondly, the need to protect the child from harm. Greater weight is afforded to the latter consideration.
In considering time arrangements, a Court might make any of the following orders:
1. an order for the child to spend equal time with each parent. Such an order would only be made if it is both reasonably practicable and in the child’s best interests; or
2. an order for the child to live primarily with one parent and spend substantial and significant time with the other parent (for example, say 9 nights per fortnight with one parent and the remaining 5 nights per fortnight with the other parent); or
3. any other order found to be in the child’s best interests and is reasonable practicable. If there are significant risk issues at play, orders for supervised time or even no time (in only very extreme cases) can be made.
The Court can also make orders for the child’s time with each parent on special occasions, such as birthdays, school holidays, the Easter and Christmas periods, and Mother’s and Father’s Days.