No presumption of equal time
There is a common misconception in the community that after parents separate, each parent has the right to have their children live with them on an equal time basis with the other parent. This is not the case.
In 2006 changes were made to the Family Law Act which introduced the concept that parents are presumed to have “equal shared parental responsibility” for the children, except in cases of family violence or child abuse. It is important to understand that “equal shared parental responsibility” does not mean “equal time”, but that parents share the responsibility for ensuring the child’s needs are met, and to make decisions that children need their parents to make, such as decisions about medical treatments, education, religion, passports, their names and so forth.
The legislation is clear that, if a Court makes an Order for “equal shared parental responsibility”, then it must consider whether a child should spend equal time with each parent – whether it is both in the children’s best interests and reasonably practicable for the child to do so. There is certainly no presumption that just because parents have equal shared responsibility that the children should automatically spend equal time with each parent.
As with all aspects of parenting matters, the best interests of the child are paramount and each case must be decided on its own merits – there is never a one-size-fits-all approach. In considering the amount of time children spend with each parent and whether equal time may be appropriate, the Court will generally consider the following matters (among other things):
- If the parents can communicate well with each other about the children, and if this positive communication has been established for some time;
- If the parents respect each other and do not undermine the other parent to the children;
- Whether the parents live close enough to each other that the children can attend the same school, the same extracurricular activities and maintain similar social networks in both places;
- If the parents can agree and effectively have a consistent approach in each household when it comes to routines, bedtimes, homework, discipline and so forth;
- The ease with which children can move between households;
- What the child’s views are and why they might hold those views – here of course the older and more mature the child is, the greater weight should be placed on their wishes;
- The child’s other relationships in each household i.e. siblings, step-parents;
- The age of the children and if they can cope with being apart from their primary caregiver for certain amounts of time.
Since the introduction of the 2006 amendments, much research has been done by psychologists in the area of parenting arrangements and it certainly is apparent that equal time is not going to be appropriate for children whose parents do not communicate well, who have fundamentally different rules in each household, or who expose the children to ongoing conflict between them. Children across all ages and developmental stages need a secure emotional base and parents who are attuned to their needs – especially so in younger children, who will usually require the stability of having a home base with their primary attachment figure.
If the Court does not consider that equal time is appropriate, they will then consider whether substantial/significant time with a parent is appropriate. That is, time which is not just “fun” weekend or holiday time, but time which includes the child’s daily routine, education, and days of significance such as birthdays and Christmas. Again, this time must be considered in the context of the particular family and always in the child’s best interests and if reasonably practicable.
The final thing to remember, which is extremely important, is that the law governing parenting matters refers to the rights of the child – not the rights of parents or grandparents. It is all about the child’s rights to a meaningful relationship with each parent and to be protected from harm. Parents are always encouraged to communicate with each other and come to their own agreements about how they share the care of their children after separation, but the best interests of the children must always be considered first and foremost.
Senior Associate
2 October 2019