Demystifying the Family Law Act: Parenting after separation

When parenting after separation, what people really want to know is, “when will I get to see my child?” After separation one of the most confronting realities for parents is that they are no longer guaranteed to see their little one sleeping peacefully at the end of a hard day. Decisions around who the child will live with or spend time with can be some of the most stressful matters when it comes to Family Law because of this. Doolan Wagner’s experts explain how it works.

In an effort to demystify the Family Law process this article will discuss the legislative framework that courts, lawyers, mediators and parents should look to when determining what is an appropriate post-separation parenting arrangement.

Issues in dispute

In parenting matters there are a number of questions that are being asked. The primary questions are these three:

• Who has, or will have, Parental Responsibility?
• Who will the child live with?
• How will they spend time with the other parent?

Parental Responsibility

Until an Order is made by the Court in relation to parental responsibility the Family Law Act says that any person who is the parent of a child under the age of 18 has parental responsibility for that child. This is regardless of the parent’s relationship with each other. That is, whether the parents are married, de facto, or separated, they each have parental responsibility for the child.

After separation the issue becomes how will parental responsibility be shared, if at all. While there are certain cases where it may be appropriate for parental responsibility to be solely given to one parent, this is the exception, not the rule. The Family Law Act specifically says that it is presumed to be in the child’s best interest for an Order for Equal Shared Parental Responsibility to be made.

Live with / Spend time with

The Family Law Act provides that if an order for Equal Shared Parental Responsibility is made the court must consider certain arrangements for the child’s time with both parents. Specifically, the Court must consider:

• Whether an equal time arrangement would be in the child’s best interest, and,
• Whether equal time is reasonably practicable.
• If the Court decides that an arrangement for equal time is not appropriate the Court must consider:
• Whether an arrangement for substantial and significant time would be in the child’s best interests, and,
• Whether an arrangement for substantial and significant time is reasonably practicable.

In making any decision about parenting the Family Law Act places the best interests of the child as the paramount consideration. Every parent would agree that they want what is best for their child, however, it is clear from the overwhelming appearances before the Family Court that people do not always agree about what is in the child’s best interest.

The Child’s Best Interest

The Family Law Act provides a set of considerations that parties can look to in determining what is in the child’s best interest. All parties to family law matters, including lawyers, mediators and the Court should encourage parents to keep these matters at the forefront of their minds when considering post-separation parenting arrangements.

The Family Law Act says that the Primary Considerations in determining whether an order is in a child’s best interests are:

• The benefit of having a meaningful relationship with the child’s parents; and,
• The need to protect the child from physical or psychological harm or from being subjected to, or exposed to abuse, neglect or family violence.
• The child’s safety and the considerations of number 2, above, are to be given greater weight than the benefit of a relationship with both parents.

Reasonable Practicality

Reasonable practicality requires a consideration from all parties involved as to how the proposed parenting arrangements will be implemented on a very practical level. This is one of the main reasons why reaching an agreement out of court and created by the parents, with the assistance of lawyers if necessary, can often result in a more sustainable solution.

The Family Law Act provides that when considering reasonable practicality the Court must have specific regard to:

• How far apart the parents live from each other,
• The parent’s capacity to implement an arrangement for equal time or substantial and significant time,
• The parent’s capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind, and
• The impact of such an arrangement on the child.

Significant and Substantial Time

Most parenting arrangements after separation will fall into the category of “significant and substantial time”. This is an arrangement whereby the child gets to spend time with both parents on weekdays, weekends and holidays as well as allowing the parents to both be involved in the child’s daily routine and events that are of particular significance to both the child and parent.

The Court said recently in the matter of Bartz & Manthey (No.2) that time for the child with the father, which included time on alternate weekends from Saturday morning to Monday afternoon and time at Christmas and Easter, was “insufficient to [be] categorise[d] as being for substantial and significant time”. The court was also guided by the fact that there was no block time that could provide the child with an opportunity to spend time with the father for holidays, either at home or away.

When considering post-separation parenting arrangements the legislative framework can be helpful in considering what an independent person, or the Court if it goes that way, would determine is in an arrangement that would be in the child’s best interests.