As far as parents are concerned the family law legislation talks about “responsibilities”. The only “rights” addressed in the legislation are the rights of the children. Children’s rights include the right to know and be cared for by both their parents. Parents are required to jointly share duties and responsibilities concerning their children.
The old language of “guardianship”, “custody” and “access” has gone and we now talk about “parental responsibility”, “lives with” and “spends time with”. This is in a large part to take away language which implies ownership of children.
In deciding what orders to make about parental responsibility (decision making) and what time a child spends with each parent a court is guided by what is in “the best interests” of the child. The legislation sets out a list of issues the court must consider in deciding what is in a child’s best interests. The two primary considerations are a child’s right to have a meaningful relationship with both parents and the need to protect a child from physical or psychological harm. The need to protect the child from harm is the overriding consideration.
There are 14 additional considerations that are considered to decide what is in the best interests of a particular child – and these include the child’s views. So a child’s wishes are not binding on the court or the parents. This is because what a child wants and what a child needs are often two separate things. Sometimes children tell their parents what they think they want to hear or what will cause them the least trouble.
It is the parents, and failing that the courts, who make the decisions about what is best for children. By law they are children until they are 18 years old. That said of course the older a child is the more we should listen to them – but there is no set age at which a child’s wishes must be followed by the court.
In discussing parental responsibility it is necessary to make a distinction between “day to day” decisions and decisions about “major long term issues”.
The day to day decisions are not decisions made “on a day” when a child is in that parent’s care. Rather they are decisions about minor issues such as taking a child to the doctor with a sore throat or what to pack in their lunch box.
Major long term issues include decisions about education, religion, culture, health, the child’s name and changes to where the child lives where the change will make it significantly more difficult for the child to spend time with a parent.
If there are no Court Orders in place then the legislation states that each parent has parental responsibility. They are expected to work together to make the decisions about major long term issues.
If a parent has a Court Order for sole parental responsibility he/she can make decisions about major long term issues for their child without the consent of the other parent.
The most common Court Order is for parents to have equal shared parental responsibility (ESPR) for major long term issues. There is in fact a presumption of ESPR. This means that the starting point is that parents should make decisions together about the major long term issues for their child – even if your child sees little or nothing of the other parent.
The presumption of ESPR can be set aside. In cases of severe family violence and child abuse generally ESPR is not in the best interests of the child. In other cases however a court is reluctant to deprive a child of the involvement of a parent.
If there is an order for equal shared parental responsibility the court must consider equal time but there is no presumption of equal time. To make a decision about the amount of time that a child spends with each parent the court is guided by what is in the best interests of the child.
There is significant psychological research which indicates that it is not in the best interests of infants and young children to be separated from their primary carer for extended periods of time. Therefore equal time orders are rarely made for children who have not yet reached school age.
There is however no presumption that once a child reaches school age that equal time will follow. A court will only do so where it is going to work for the child. If you want to have your child spend equal time between households there are the factors that a court thinks are important such as:
If you can tick off most of these factors then equal time is probably going to work for your children. If not, then your children may be exposed to parental conflict, they may miss out on sport and social events and most likely their schooling and personal happiness will suffer. If there is family violence, child abuse or significant parental conflict a court is most unlikely to make an order for equal or significant time.
It is recommended that before you negotiate arrangements for your children you obtain legal advice about your particular situation. Each family is different and what is set out above may not be relevant to your family. If you have limited funds then free legal advice is available from Legal Aid Queensland, the Women’s Legal Service and the Cairns Community Legal Service.
© Cope Family Law 2021