Shared Care of children under the age of 5

If you have a child or children who are under the age of 5, there are some additional considerations that the Court will need to take into account. These can include matter such as who has been the primary carer for the child prior to separation, the level of dependence the child has on either parent, and what impact there will be if the child is separated from either parent for extended periods. Whilst these considerations are important, they do not mean that a child should not have some time with both parents.

Presumption of “Equal” or “Substantial and Significant Time”

Under the Family Law Act 1975, shared care arrangements for children are considered after consideration of whether the presumption of equal shared parental responsibility should apply.

If the presumption does apply, unless there are concerns about your child’s safety or well being in the care of the other parent, in the first instance it is presumed they will “equal” or “substantial and significant” time with both parents. This is because the Court considers that is beneficial for a child to have the love and support of both their parents from a young age and to develop meaningful family connections.

You can see our blog post on shared parental responsibility here or equal shared care & substantial and significant care here.

When considering whether equal or substantial and significant shared care is appropriate, the Court will assess how practical this type of arrangement may be. This is where issues surrounding young children become particularly important. Where a baby is still breastfeeding, it may not be in that child’s best interests or practicable for the child to spend extended periods of time away from his or her mother. It may be that a toddler has never spent more than a couple of hours away from his or her mother, meaning that immediately spending overnight time with his or her father could be distressing and not in the child’s best interests.

Where neither parent is a risk to the well being or welfare of the child, the Court’s general approach is to create a schedule for young children where they gradually spend more and more time with the non-primary caregiver – building to equal shared care or substantial and significant shared care arrangements. This does not mean a child cannot spend overnight time with the other parent prior to this, or even that a 50:50 week-about arrangement would not be appropriate in the future.

Risk to a Child

However, there are some circumstances where it may not be appropriate for a child to spend significant time with both parents. For example where one parent is not capable of caring for the child, there is a risk of family violence, one parent suffers a serious mental incapacity or abuses drugs, or the child is otherwise at risk of neglect or abuse. In these situations the Court may find the presumption of equal or substantial and significant time to be rebutted.

Where one parent poses a risk to a child for these sorts of reasons, it is not uncommon for the Court to order that this parent must have their time supervised by an organisation such as AC Care or a suitable family member, to ensure the child is safe. Ideally, this would allow the parent to receive support and make the necessary changes in their life (if possible) to be able to care for their child unsupervised in the future.

We agree on Shared Care Arrangements – Now What?

Ideally, any arrangement that is ultimately agreed should be expressed in either a parenting plan or Court Order. A parenting plan is not legally binding, however is a good way to reflect what the parties intentions are if conflict arises.

At Bersee Legal we almost always recommend, that instead of leaving a shared parenting arrangement to be outlined in a non-binding parenting plan, you should turn that agreement into a legally binding court order by consent. A court order provides a layer of protection and piece of mind for both parents that if the other parent stops complying with the agreement, the agreement can be legally enforced and isn’t complicated to obtain.

If the parties cannot agree an arrangement, it may be necessary to make an application and have the Court decide an outcome.

Parties are generally required to attempt mediation prior to filing an application in the Court, unless mediation would not be appropriate (for example, if one parent has withheld children, or there is a background of domestic violence).

If you have questions about shared care arrangements, you can contact one of our helpful staff to discuss what might be right for you.

Brittany Shelton – Solicitor

Brittany graduated from Flinders University with a Bachelor of Laws and Legal Practice and a Bachelor of Commerce (Accounting). She has been admitted to the Supreme Court of South Australia and the High Court of Australia.

Brittany specialises in the areas of family law, divorce, personal injury claims, wills and estates and criminal law. Brittany is a member of the general panel of the Legal Services Commission of South Australia.

(08) 8725 6969

Legal Secretary: Ms Karen Howard