Keeping up with the times and the lingo in relation to “custody of children”
When it comes to referring to who has the care of children in family law proceedings, the reference to who has “custody of children” is considered old fashioned and no longer appropriate.
The underlying premise is the right of the child to have a meaningful relationship with both parents.
The terms “equal time” and “substantial and significant time” are now used when it comes to considering the time that children should spend with each of their parents under Court orders.
But what do these terms mean? In this article, we explain what the terms “equal time” and “substantial time” means to the Court and for you as a parent.
Parenting Orders: Parental Responsibility
Before a Court will make an order regarding the time a child spends with each parent, 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.
Parental responsibility encompasses all duties, powers, responsibilities and authority conferred by law upon parents. This means responsibility for the day to day issues and for the big issues such as their health, education, religion etc.
If equal shared parental responsibility applies, when making decisions about the big issues, also known as “major long term issues” for the children, parents must:-
- Consult each other in relation to a decision being made about that issue; and
- Make a genuine effort to come to a joint decision about that issue.
The Court can refuse to apply the presumption in certain circumstances (which is referred to as “rebutting the presumption”) where there is evidence of abuse of a child or of another child who was a member of that parent’s family or of any family violence.
If the presumption of equal shared parental responsibility for the child is not rebutted, then the Court must consider whether “equal time” would be in the best interests of the child, whether it is “reasonably practicable” and if so, consider making an order to provide for the child/ren to spend equal time with each of the parents.
Then, if the Court does not make an order for “equal time” the Court must consider making an Order for “significant and substantial” time.
To determine whether time is reasonably practicable, the Court considers the following factors:-
- how far apart the parents live from each other; and
- 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
- 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
- the impact that an arrangement of that kind would have on the child; and
- such other matters as the court considers relevant
Making an Order
The Court will rely upon evidence from each party to the proceedings, whether that be the parents, an independent children’s lawyer, or a third party joint to the proceedings, to:-
- determine whether the presumption of equal shared parental responsibility is rebutted in cases where this is raised;
- Determine what is in the best interests of the child;
- Determine what is reasonably practicable in the circumstances; and
- Determine what Order should be made regarding the care of the child or children.
Equal time v Substantial and Significant: What’s the difference?
Equal time is just that, a 50/50 care arrangement. Whether that’s with weekly or fortnightly changeovers, or a varied changeover routine that works best for the child, the child spends equal time with each parent.
Substantial and significant time, on the other hand, is defined in the legislation. The legislation says that time will be considered substantial and significant, if the time the child spends with the other parent includes both:
- days that fall on weekends and holidays; and
- days that do not fall on weekends or holidays; and
- the time the child spends with the other parent allows the parent to be involved in:
- the child’s daily routine; and
- occasions or events that are of significance to the child; and
- the time the child spends with the other parent allows the child to be involved in occasions and events that are of special significance to the parent.
What does “being involved in the daily routine” mean?
There is no definition for “daily routine” that applies for all children and all families.
Being a part of your children’s daily routine does not necessarily mean seeing your children every day.
In a 2016 case, the Full Court held that the children spending time with their Father on alternate weekends, alternate Fridays (from after school to 7 pm), special days and school holidays comprised substantial and significant time.
The Full Court said that this was substantial and significant because the practical effect of the orders was that the children would spend time with the Father during school term every week, for a full weekend every second weekend and at school events that parents normally attend. The children would also have time for telephone and FaceTime contact with the Father and also for block periods in school holidays and on special occasions.
Obviously, each child’s routine and life is different as is each family and the practical effect of arrangements will vary for each case.
What should I do next to ensure appropriate care arrangements for children?
If you are considering separation, or if you have already separated, and you have a child or children with your former partner, call our Family Lawyers on (07) 3506 3651. Our team of experienced lawyers located at the Grange and Brisbane CBD can assist you in your matter regarding custody of children.
To receive a FREE 15 minute consultation with one of our solicitors, contact us today and take the next steps to ensure the care, welfare, and development of your child is protected.