In child custody matters, when making a parenting order, the main consideration of the court is whether the proposed arrangements are in the best interests of the children.
The court presumes that it is in the best interests of the children for parents to have ‘equal shared parental responsibility’, but it will look at what is best for the particular child in each individual case.
This presumption will not apply if there has been child abuse or violence by a parent or a person who lives with the parent).
DECIDING CHILDREN’S BEST INTERESTS
The court’s most important considerations are:
- protecting children from physical and psychological harm, including children seeing family violence, being neglected or being physically or psychologically hurt; and
- the benefit of children having a meaningful relationship with both parents.
If these two conflict, the need to protect the child is given greater weight.
The court must also consider:
- any views of the children, balanced against how much they understand and how mature they are;
- the kind of relationship children have with their parents and other significant people, including grandparents, brothers and sisters, and other relatives;
- the extent to which each parent has been involved (or not) with decisions about major long-term issues about the children;
- how much time each parent has (or has not) spent with and communicated with the children;
- whether each parent has supported the children financially or failed to do so, for example paying child support on time;
- the likely effect of any change to where children have been living or staying, including separating them from either parent, grandparents, siblings, any other relatives or other people important to their welfare;
- the practical difficulty and expense of children seeing each parent, and whether that will affect their right to have a relationship with each parent;
- how much each parent and any other person (including grandparents and other relatives) can provide for the children’s physical, emotional and intellectual needs;
- the maturity, background (including culture and traditions), sex and lifestyle of the children and of each parent;
- each parent’s attitude to the responsibilities of being a parent and towards their children in general;
- any family violence involving the children or a member of their family; and
- any other considerations the court thinks are important.
EQUAL SHARED PARENTAL RESPONSIBILITY
Parents have duties and responsibilities in relation to their children. Equal shared parental responsibility means both parents sharing major long-term decision making about the children. It is not the same as equal parenting time or shared care.
Equal shared parental responsibility includes making decisions about children’s:
- medical matters
- religious matters
- cultural matters
- living arrangements.
If the court finds both parents share parental responsibility, then the parents must try to come to agreement about major long-term decisions affecting the children.
Equal shared responsibility is not presumed if there has been child abuse or violence by a parent or a person who lives with the parent.
If equal shared parental responsibility is presumed, the court must consider whether it is practical and in the best interests of the children for them to spend equal time or ‘substantial and significant time’ with each parent.
Substantial and significant time includes children spending weekdays, weekends and holidays with each parent and each parent having meaningful involvement with the children’s daily routine. It includes things such as a parent spending time with