Children Family Lawyers NSW

The Family Law Act has been drafted with the intention of ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent that such involvement is consistent with that child’s best interests.

What is the presumption of equal shared parental responsibility?

When making a parenting order, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

  1. abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
  2. family violence.

In relation to a child, issues about the care, welfare and development of the child of a long-term nature includes (but is not limited to) issues about:

  1. the child’s education (both current and future); and
  2. the child’s religious and cultural upbringing; and
  3. the child’s health; and
  4. the child’s name; and
  5. changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.

In the absence of any risk of harm and provided it is reasonably practicable the Court will then examine whether the parent will spend equal time or substantial and significant time with the child.

Equal time of spending substantial and significant time?

If a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child, the court must:

  1. consider whether the child spending equal time with each of the parents would be in the best interests of the child and consider whether the child spending equal time with each of the parents is reasonably practicable; or
  2. consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child and consider whether the child spending substantial and significant time with each of the parents is reasonably practicable.

What is substantial and significant time?

A child will be spending substantial and significant time with a parent only if:

  1. the time the child spends with the parent includes both: a. days that fall on weekends and holidays; and b. days that do not fall on weekends or holidays; and
  2. the time the child spends with the parent allows the parent to be involved in: a. the child’s daily routine; and b. occasions and events that are of particular significance to the child; and
  3. the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

In the case of KML v RAE [2006] FMCAfam 528, the Court defined substantial and significant time and went onto say:

“for a parenting arrangement to involve substantial and significant time, one would normally expect to see the amount of mid week time, when taken with weekend, holiday and special occasion time, providing an opportunity for the child to be assisted by the parent with homework, to have the parent take the child to and from sports training and games in which the child is involved, to have the parent take the child to practice for, and to attend performances relating to, the child’s other extra curricular activities such as scouts or guides, music and dance, and to experience life as a member of the parent’s household with all the mundane reality that entails, including the parent cooking, washing and cleaning for the child, and the child, as may be age appropriate and in accordance with the reasonable wishes of the parent, assuming some household responsibilities in that parent’s household”

What is reasonably practicable?

In determining whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:

  1. how far apart the parents live from each other; and
  2. the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
  3. the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
  4. the impact that an arrangement of that kind would have on the child; and
  5. such other matters as the court considers relevant.

Conclusion

Every separation and every child is unique.

A Court will examine many factors when determining what is in the best interest of a child and how each child will spend time with their parent’s post separation.

The above information is a very short overview of factors that will be considered by a Court in relation to parenting matters.

 


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