Children
The overriding principle of the Court in making children's orders is "what is in the best interests of the children?"
You may have heard in the media that equal time with each parent is the law. This is incorrect. Each case is different and the Court will always look at the overriding principle - what is in the best interests of the children? - before making any children's orders.
The legislation preserves the child's rights to know and have a meaningful relationship with both their parents rather than the parents' rights to spend time with the child/ren.
The court can make orders that the child/ren spend time with other significant people such as grandparents.
There are 2 components in children's issues:-
1. Shared Parental Responsibility
This means the parents share equally in making decisions for the children e.g. religion to be followed by the child, medical procedures, which school the child attends, and other long term issues.
One party is not permitted to make long term decisions unilaterally. Share parental responisibility DOES NOT MEAN EQUAL TIME spent by each parent with the child.
The Court can order sole parental responsibility to one party in circumstances of child abuse, domestic violence and when one party does not wish to participate in the child's life.
2. The Court looks at a numbr of issues when determining what is in the child's best interests.
This is broken up into primary considerations and additional considerations. Primary considerations looks at the benefits of the child having a meaningful relationship with both parents and the need to protect the child from physical and psychological harm.
Additional considerations are:-
* views expressed by the child;
* the nature of the child's relationship with both parents;
* the effects of separation on the child from a parent;
* the parents' attitude to the child and to responsibilities of parenthood;
* domestic violence issues;
* payment or non-payment of child support; and
* other issues.
The Court must consider equal time if appropriate, but there is no mandatory law which states that equal time must apply in each case. Equal time may be appropriate if it is in the best interests of the child.
If the child is not spending equal time with the parents, then the child will spend substantial and significant time. There is no guidance in the legislation as to what this means.
From case law, the court will look favourably in making children's orders, as follows:-
Week 1: Wednesday after school to before school on Thursday;
Week 2: Thursday after school to before school on Monday.
- in addition to special days like Christmas Day, Father's Day, Mother's Day, the child's birthday, school holidays and so on.
If you are considering an equal time arrangement in your parenting orders, firstly consider how your child will cope "living out of a suitcase".
The number of nights a child spends with the other parent may be relevant also in assessing property issues and child support and this quite often leads to conflict when one parent wants to minimise payment of child support and presses equal time with the child to achieve this goal.
One of our friendly team is available for a confidential discussion about your family law matter. Please ring Vikki on (02) 9687-9322.
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