One of the most significant issues for parties in dealing with the end of their relationship is what arrangements do we enter into to care for our children. Once upon a time we used the terminology “Custody” and “Access”. That is one of the parents had custody of the children and the other parent access. These terms have been done away with in favour of the terms “Parental Responsibility” (decision making ) and “Lives with” or “Spend times with “ orders which are the day to day arrangements for the children to live with one or both parties and or spend time with one or both . The old wording was done away with as with the terms Custody and Access went notions of ownership and the right to make decisions.
In this relatively new environment that has been around since 2006 in the absence of any orders to the contrary there is a presumption that both parents are equally obliged to be involved in the decision making for a child or children. This suits many families but there are circumstances where this cannot and should not occur. Such as one parent being overseas; incarcerated or simply not able to be involved in the decision making role due to ill health or other circumstances. Courts in making decisions about what they term “parental responsibility” are loath to cut a parent out of the decision making role, even if there is a great deal of acrimony between the parents.
“Live with” or “Time with” orders are what you will achieve if you seek to formalize arrangements in regards to your children. A child or children can principally live with one parent and spend time with the other or live with both parents.
What arrangements you enter into has a great deal to do with the particular child or children. There is a requirement for the court to consider why the presumption of equal shared parental responsibility should not equate into equal shared time. That is that the children spend equal time with both parents. In making this decision the courts have to have regard to what is in the children’s best interests. Many situations do not suit equal shared time arrangements.
In practice what we practitioners are finding is that orders for the care of children are in any fourteen day period the children being split between two parents on ranging from 3 days with one parent and 11 days with the other to equal shared arrangements. That is seven days with each parent. What arrangement depends on what is in the children’s best interests.
Each parent in dealing with this issue need to be mindful that it is in the children’s bests interest for them to have a meaningful relationship with both parents. This concept is imbedded in the Family Law Act.
Many parties that I see are able to reach suitable arrangements and there is no need for the courts or lawyers involvement. Others wish the security of orders and seek to formalize arrangements with respect to the care arrangements. This can be achieved by way of the procedural method where the agreements (Minutes of Orders) are sent to the court for approval. This process is relatively easy, inexpensive and avoid the need for a court appearance. There are those matters where there is no option but to have the court make a decision.
Obviously with the use of lawyers litigation increases the costs. Whilst one can put a cost-benefit analysis to litigating about property matters It is hard when children are the issue to put a dollar value on going to court to fight for arrangements that you see at are in the children’s best interests.