Children and post separation arrangements: How does the law operate?

Date: Aug 08, 2013
Document Type: Newsletter

When a relationship has come to an end and there are children involved, there are a number of issues that parents must deal with, and one of the primary matters that must be addressed, is post separation parenting arrangements. There is no hard and fast rule in how arrangements should be organised, and the overriding consideration is always what arrangements will best suit the child in the particular familial circumstance. Generally speaking, the law encourages that a child spends significant time and communicates with the parent whom the child does not usually reside with after separation. The legislation states that a ‘substantial and significant time’ must be spent with each parent, but what does that mean? Again, there is no magical legal formula which outlines what is meant by ‘substantial and significant time’, however, there is a legal duty for each parent to encourage the child to have a relationship with the other parent when making post separation parenting agreements that may be substantial, significant or equal.

How is ‘substantial and significant time’ defined?

Although there are no explicit instructions on how parenting arrangements should be handled between the parties, the Act does offer some direction on what ‘substantial and significant time’ may constitute, and may include:

  • weekends and holidays
  • weekday arrangements
  • an allowance for each parent to be involved with the child’s daily routine
  • an allowance for participation by both parents in significant events and celebrations involving the child.

The Act also requires that any arrangements should include the views of the child, and that the type of arrangement organised should be age appropriate.

How is ‘equal time’ defined?

If the courts make an order for the child to spend equal time with both parents, it must be reasonably practical to do so, whilst still taking into account the best interests of the child.

Section 65DAA sets out what is considered as reasonable and practicable, and the courts may consider:
  • how far apart the parents live from each other
  • the capacity of the parents to implement the arrangements being considered
  • the capacity of the parents to communicate with each other and resolve any difficulties
  • the effects of the proposed arrangements on the child.

In circumstances where one parent wishes to argue against the ‘equal time’ arrangements, it must be up the complainant to demonstrate that the ‘equal time’ edict is not in the best interests of the child.

The wishes and best interests of the child requirements

In some circumstances, a child may be unwilling to spend time with the other parent for a number of reasons. However, the wishes of the child, and the legal, best interests of the child considerations are not always the same thing.

Case law has suggested that when a child’s reluctance to spend time with the other parent is so extreme that the child is suffering from a number of physical afflictions which may signify distress, is a scenario which may be considered as a significant factor when the courts are deciding on the type of order to apply.

Each parent must encourage and facilitate a relationship with the other parent

There’s no denying that parents who have separated with one another may not have the most amicable of relationships in all cases, however, the courts generally have still taken the approach that parents should seek to actively encourage and facilitate a positive relationship between the child, and the other parent – irrespective of the nature of the personal relationship between the parents.

The Act encourages parents to always seek the most appropriate post separation arrangements in regards to the child with as little legal input as possible. However, if you are experiencing any issues with post separation parenting arrangements, always seek legal advice.  

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