When parents separate one of the hardest things to agree on is who is going to take care of the children

When an amicable agreement cannot be established, with or without the help of a Family Dispute Resolution practitioner, then the parents may have to apply to the Family Law Court to make a decision about what should be done.

The Court will establish a Court order after consideration of the circumstances, called a parenting order. A parenting order has much more legal weight than an informal arrangement between the two separating parents or a parenting plan which they may have established.

The Court will make its decision based on what is best for the child or children.

The decision will establish who has parental responsibility, who the children live with, how much time the children have with each parent, how parents should establish communication with each other about decisions about the children, how children themselves should communicate with their individual parents and other aspects of the care and welfare of the children that are considered important.

Parental responsibility is normally to be shared

The Court normally decides that each parent has equal responsibility for the welfare of their children, even if that does not mean for practical reasons that the children live equally in terms of time with each parent.

There are a number of reasons why the principal of equal responsibility might not apply. Usually this is when there has been a history of abuse or violence in the family and there is a legitimate concern that one of the parents could harm the children or otherwise be unable to make sound decisions about their continuing welfare.

Shared parental responsibility means that the two parents after separation are obliged to consult each other about the long term welfare of their children. Especially, this includes their education, upbringing, name, and contact time if there are any changes in living arrangements of one of the parents.

The Court makes its decisions based on what it considers are the best long term interests of the children. This includes having a meaningful relationship with each parent and the need to protect the children from harm. The Court will consider a number of different factors before making its decision. These include such things as:

• The wishes of the children, as well as their gender, age and level of maturity
• The practical ability of the individual parents to be able to look after the children
• The willingness of individual parents to look after the children
• The relationship between each chid and their individual parents and any other adults such as the grandparents
• The existence of a family violence order  
• The right for any Aboriginal or Torres Strait Island child to have access to his or her own culture.
• The nature of each parent’s relationship with their children after separation, particularly their attempt to spend time with them and contribute to their welfare financially.

Does equal responsibility mean equal time?

When the Court makes a decision, which it normally does, for the parents to share equal responsibility for their children then there is also a need to establish how much time the children spend with each parent.

If equal time living with each parent is practicable and workable then this is the preferred arrangement. Usually, this is uncommon and the next most likely decision is to ensure that the parent who is not living with their children should have a significant and substantial amount of time with their children.

This means weekends, holidays and access to daily routines and special occasions like birthdays, school events and so on. The Court will have to decide what circumstances this time sharing should involve based on how practicable it is and what is in the best interests of the child.

Most of these decisions are basically common sense and based on where and how far apart the two parents will live from each other after separation and how practical it will be for effective communication about access and any other aspect of the children’s upbringing and welfare.

It is the intention of the Court, when making its decision about access to children after separation, that the child has a right to maintain a meaningful relationship with each parent and that is why substantial and significant time with the parent with which they do not live with is considered important.

According to Family Law, the parent does not have an automatic right to have a certain time with their children after separation.In fact, it is regarded as each child’s right to have sufficient meaningful time with each of their parents.

The Family Court may look unfavourably on any parent who attempts to obstruct their former partner from having significant time spent with his or her children unless it can be shown that this relationship might put those children at risk of abuse or violence.