Posts

Time arrangements for children with separated parents | Custody of Children

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.

Custody of Children

Custody of Children

 

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:-

  1. Consult each other in relation to a decision being made about that issue; and
  2. 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.

Reasonably practicable

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:-

  1. determine whether the presumption of equal shared parental responsibility is rebutted in cases where this is raised;
  2. Determine what is in the best interests of the child;
  3. Determine what is reasonably practicable in the circumstances; and
  4. 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:

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

Parenting plan

Tips for arranging Mother’s Day with your former partner

Mother’s day is just around the corner. For children, it’s a good day to stop and appreciate the very special role Mother’s play in your life. For Mother’s, it should be a day filled with relaxing and spending quality time with your children. However, if you’re separated, it may be a difficult day to negotiate with your former partner.

To avoid any stress or confusion on the day, it’s a good idea to put in place a parenting plan with your former partner ahead of time. Here’s a few tips on how to ensure this Mother’s Day is an enjoyable one.

Parenting plan

Making a parenting plan for Mother’s Day

Whether this is your first Mother’s Day post-separation or you have been separated for a while, it can be a challenging day to face on your own. Naturally, as a mother, you want to spend this important day with your children.  It’s important then to ensure that you and your former partner can agree on a parenting plan for the day that will work well for you both as well as for the children.

There are a number of parenting plan methods you can put in place for Mother’s Day, depending on what suits both parties. Some more common ones include:

  1. A time-sharing arrangement over Mother’s Day weekend: This allows both parties to enjoy part of the day or weekend with the children. For instance, one parent (more likely the Father) would have the children from 9:00am on the Saturday until 9:00am on Mother’s Day. Then 9:00am on Mother’s Day until 9:00am the next day would be spent with the other parent (more likely the Mother).
  2. Mother’s Day arrangement: This parenting plan allows the children and you to enjoy your special day with the children. The children spend Mother’s Day each year with you. You might agree to make it a weekend or just the day that the children spend with you on Mother’s Day.

A similar parenting arrangement can then apply for the children to spend time with their Father on Father’s Day.  No matter what parenting plan you and your former partner decide upon, it’s a good idea to choose an arrangement that is less disruptive for the children and, if there is conflict between you and your former partner, one which involves as little interaction for you with your former partner as possible.

It is not a requirement for parenting arrangements that you have any legal agreement or court orders in place.  It often really helps however, if you and your former partner at least have a parenting plan that sets out what you have agreed for parenting arrangements. This will help to ensure that you have both considered all factors.

If agreement cannot be reached or where there is conflict or domestic violence involved, a court order can give you certainty and limit or exclude occasions where you and your former partner would otherwise need to interact in relation to arrangements for the children.

A court order may be obtained by agreement with your former partner and in that case, you do not need to attend at Court.

If agreement cannot be reached for consent orders to be issued, you may need then to consider making an application to court seeking parenting orders.  Depending upon your circumstances, you will likely need to attend or at least attempt a dispute resolution meeting with your former partner before any application is made to court.

You are welcome to contact us at LGM Family Law for advice specific to your circumstances. We can assist you in reaching a parenting plan or where necessary, obtaining court orders for arrangements for your children.

For more information on child custody, see here.