Parental responsibility and living arrangements
When people separate an important question is what happens with the children? There are two main issues to consider:
- Parental responsibility. This refers to the duties, powers, responsibilities and authority which a parent has in relation to a child. It usually arises when considering long term decisions such as a child’s health, religious and educational needs. When making a parenting order the court must apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility. This presumption does not apply in all circumstances e.g. where there are reasonable grounds to believe that a parent of a child has engaged in family violence or in abuse of the child.
- Sorting out the time that the children live with/spend with each parent. Do they live with each parent for equal amounts of time? Do they primarily live with one parent? If they primarily live with one parent, how much time do they spend with the other parent?
What if we agree about parenting arrangements?
If you come to an agreement, you may wish to put it in writing.
One option is a parenting plan. It is a written agreement between you and your ex partner which sets out the parenting arrangements for your children. It does not go to court.
The limitation of a parenting plan is that, after the making of the parenting plan, it is possible for a person to apply to the court for a parenting order. The Court is not bound by the parenting plan, but the court is to have regard to the terms of the parenting plan if doing so would be in the best interests of the child.
A second option is a consent order. Your agreement is sent to the court (you do not need to attend court) and the court makes orders as set out in your agreement. It is legally enforceable.
What if we can’t agree about parenting arrangements?
You may not be able to agree with your ex partner about the parenting arrangements for your child. In most cases we advise that you attend mediation (family dispute resolution) to attempt to reach an agreement. In most cases, prior to applying to the court for parenting orders, it is mandatory to attempt mediation.
If you still can’t reach agreement then it will be necessary to apply to court for parenting orders. The court can initially make interim orders and then ultimately final orders.
The best interests of the child.
If you were to know only one aspect of the law relating to parenting orders then it would be this… that when a court decides whether to make a particular parenting order it must regard the best interests of the child as the paramount consideration. This applies whether the order is sought with the consent of both parties or it is a contested case before the court.
In determining what is in the child’s best interest, the two primary considerations are: –
- The benefit to the child of having a meaningful relationship with both parents; and
- The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
The second of the two primary considerations is to be given the greater weight.
The additional considerations in determining what is in the child’s best interest include: –
- The child’s views, depending on their age and maturity
- The nature of the child’s relationship with each parent
- The extent to which each parent has participated in decision making for any long term issues in relation to the child
- The extent to which each parent has taken the opportunity to spend time with and communicate with the child
- The likely effect on a child if there was to be a change in their circumstances such as where they would live, who they would live with, and any separation from a parent, sibling or other significant person in their life.
- The capacity of the child’s parents and any other relevant person to provide for the needs of the child.
- The existence of any family violence involving the child or a member of the child’s family.
Grandparents and others
If you are a grandparent, or any other person concerned with the care, welfare or development of the child, you may apply to the Court for parenting orders. This could be an order that the child spend time with you and communicate with you. This could be for an order that the child live with you.
*This information is supplied as general advice only. For expert advice relating to your specific family law issue, contact one of our experienced and professional family law solicitors.