The Journey to Equal Time

Introduction

More and more cases coming before the court now involve parents asking the Court for them to be able to spend equal time with their children. In most of these cases the other parent will be asking that the other parent be permitted to be able to spend only ‘substantial and significant’ time with the children. Both of these scenarios involve more than the traditional alternate weekend arrangements which are now considered, in most cases, obsolete. In all of these cases the Courts must apply newly legislated principles to each factual scenario. These principles were first handed down by the Australian legislature on 1st July 2007, and now, more than twelve months later, most lawyers can tell you, with a reasonable degree of certainty, whether or not you will be successful in seeking ‘equal shared care’ or ‘substantial and significant time’.

What happens when you first separate?

In a lots of cases after parents separate, they will make informal arrangements with one another about the time (and communication) each of them will have with their child/ren. Disputes about time and communication can often occur immediately after separation, or some months or years later. Parents then find themselves in a position where they are uncertain about their rights and obligations under the law, and in need of legal advice about what to do. Parents often do not know how their dispute would be resolved by a Court and how much time a Court would find they should spend with their child/ren.

1st July 2006 Amendments to the Family Law Act 1975

On 1 July 2006, the law changed with respect to parenting matters with the coming into effect of the Family Law Amendment (Shared Parental Responsibility) Act 2006. A new formula was put into a legislative framework for determining the best interests of children. That framework is set out below.

1st July 2007 Amendments to the Family Law Act 1075

On 1 July 2007, there was a further requirement put into law that people in dispute over parenting matters must attend a compulsory family dispute resolution service (for example mediation) to resolve their dispute. People (who don’t already have a Court Order) no longer have the option of going straight to Court, except in very limited circumstances. While attending at that mediation there is a further requirement that you make a genuine effort to resolve the issues in dispute. Only then will a certificate be issued enabling either party to commence proceedings in the Federal Magistrates Court of Australia or the Family Court of Australia should matters not resolve at the compulsory family dispute resolution service.

Purpose of the Legislation

The purpose of the changes to the Family Law legislative framework are to ensure that the best interests of children are met by:

• Ensuring that the children have the benefit of both parents having a meaningful involvement in their lives to the maximum extent possible.
• Protecting children from harm.
• Ensuring children receive adequate and proper parenting.
• Ensuring that parents fulfill their duties and meet their responsibilities concerning their children.

Certain principles underly the amendment of the legislative framework and those are:

• That children have the right to know and be cared for by both parents.
• That children have the right to spend time with both parents.
• That parents jointly share duties and responsibilities concerning their children.
• That parents should agree about future parenting of their children.
• That children have the right to enjoy their culture with people who share that culture (in this instance this particular principle is not terribly relevant).

How the Court Determines What is in a Childs Best Interests

What does the Court take primarily into consideration?

The primary considerations for determining what are in a child’s best interests are as follows:

1. The benefit to the child of having a meaningful relationship with both of the child’s parents; and
2. The need to protect the child from physical or psychological harm and from being subjected to or exposed to abuse, neglect or family violence.

What other considerations are there?

When the Court is determining the best interests of children, it will consider the following in addition to that above:
any views properly expressed by the child;
the nature of the child’s relationship with each of the parents and other persons of significance (such as grandparents);

• the willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent (on your instructions it appears that the Mother of the children is refusing to any way facilitate your relationship with your children since separation);
• any change in the child’s circumstances;
• the practical expense of the child spending time with the parent that the child does not live with;
• the capacity of any adult caring for the child to provide for the needs of the child;
• of the maturity, sex, lifestyle and background of the child;
• the attitude to the child and to the responsibilities of parenthood demonstrated by each of the parents;
• any family violence involving the child or members of the child’s family;
• any family violence order that applies to the child or a member of the child’s family;
• whether it would be preferable to make an order that would be least likely to lead to the further institution of proceedings in relation to the child; and
• any other factor or circumstance that the Court thinks relevant.

What else will the Court look at?

When reviewing the willingness and ability of each of the child’s parents to encourage a relationship and the attitude to the child on the responsibilities of parenthood, the Court will consider:

• Whether a parent has failed to take an opportunity to participate in making decisions about the child or to spend time with the child or communicate with the child.
• Has facilitated or failed to facilitate decisions about the child, spending time with the child or communicating with the child.
• Has fulfilled or failed to fulfil the parents obligation to maintain the child (example by Child Support).
• The Court must have regard to events that have happened and circumstances that have existed since the separation occurred.

Court to Consider Child Spending Equal Time in Certain Circumstances

When making a parenting order, the Court must now consider:

• Whether spending equal time with each parent is in the best interests of the child.
• Whether spending equal time with each of the child’s parents is reasonably practicable.
• If it is reasonably practicable make an order for the child to spend equal time with each of the parents.
• Reasonable practicality is determined by factors such as:
• how far the parents live from one another;
• the parents current and future capacity to implement an arrangement for the child spending equal time with both parents;
• the parents capacity to communicate with one another about the arrangement;
• the impact such an arrangement would have upon the child or children;
• such other matters that the Court may consider relevant.

What will happen if equal-time is not in the best interests of the children or is not reasonably practical?

IMPORTANT: There is no presumption that a child should spend equal time with each of its parents. In the absence of family violence and/or child abuse the Court must consider equal-time, but it is never bound to give it to you. There are often strong practical reasons why the Court will not order equal-time.

If it is not in the best interests of the child or it is not reasonably practicable to put in place an equal time arrangement the Court must make an order for the child to spend substantial and significant time with the parent that the child does not live with. The Court does this by determining again what is in the best interests of the child. The only circumstances where an order for substantial and significant time will not be made is where there are indications of serious family violence or child abuse or further indications that it really is not in the best interests of the child for that particular child to spend substantial and significant time with one of its parents.

Is substantial and significant time the same as traditional alternate weekends and half the holidays?

The simple answer to this is – no. Substantial and significant time is quite different is only limited by what is determined to be in the best interests of the child.

An order for substantial and significant time must include an order for the child to spend time with the parent on the following days and at the following times:

• days that do not fall on weekends
• holidays
• days of special significance – such as Christmas Day, Easter Sunday, the child’s birthday, Mother’s Day and Father’s Day
• time that allow the parent to become (if they are not already) involved in the daily routines of the child

That is, the Court must in most circumstances include in the Order that the child spend time with the parent on a week day. This may involve the child spending mere hours with that parent on a given day (for example, after school) or the child may stay with that parent overnight.

False Allegations

In Family Law we sometimes, sadly, discover that parents are so alienated from one another and in such a high level of conflict that they will say and do almost anything to stop the other parent remaining meaningfully involved in a child’s life. They may make false allegations of abuse or violence against a parent, or may tell the Court the child has made certain disclosures which the child did not make.

When proceedings are brought before a Court and the Court is satisfied that a party of the proceedings knowingly made a false allegation or statement in the proceedings, the Court must order that party to pay some or all of the costs of the other party to the proceedings. Not only are such allegations tantamount to perjury, but they may have other significant repercussions in a child’s life, as well as having significant other penalties.

Obligations of Legal Advisers

In accordance with Journey’s obligations under the new legislative framework, we advise as follows:

1. You must consider at all stages either in the proceedings or in reaching an agreement in relation to a child that, if the child is spending equal time with each of the parents, is reasonably practicable and in the best interests of the child – you must consider an arrangement of that sortt.
2. If equal time is not reasonably practicable or it is not in the best interests of the child, then you could consider the option of an arrangement of a child spending substantial and significant time (which is more than the traditional alternative weekend arrangement) with the parent.
3. Decisions made in relation to parenting agreements, plans and orders should be made in the best interests of the child.
4. Matters that may be dealt with by way of a parenting order are:

(a) the person or persons with whom the child is to live;
(b) the time the child is to spend with any other person or persons;
(c) the allocation of parental responsibility for a child (whether it is to be shared or whether it is to be sole parental responsibility);
(d) if two or more persons are to share responsibility, the form of consultations about that responsibility;
(e) the communication the child is to have with another person or persons;
(f) maintenance of a child;
(g) the processes to be used for resolving disputes about terms or operations of the plan (example attending mediation);
(h) the processes to be used to a change in the plan;
(i) any other aspect of the care, welfare or development of a child.

1. If there is a parenting order in force in relation to a child, the order may include a provision that the order is subject to any parenting plan that the parent subsequently enter into.
2. It is desirable to include in any parenting plan or order that deals with a form of consultation in relation to decisions to be made in the future and the form of dispute resolution to be used in avoiding future conflict and a way to change any order or agreement in the future.
3. Programs are available to assist in relation to making a parenting order or parenting plan, including programs such as the Relationships Australia “Keeping up Contact” program.
4. In the event that any matter proceeds to Court, the Court must have regard to the terms of the most recent parenting plan or order when making a parenting order if it is in the best interests of a child to do so.

Questions or Queries

If you have any questions or queries about this fact-sheet, or wish to discuss its contents further, please do not hesitate to Contact Us or contact your family law solicitor at Journey who will be more than happy to assist you.