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Shared Care of children over the age of 5

While planning a shared care arrangement for a child of any age, the Court has two paramount considerations:-

  1. The child’s safety and well being; and,
  2. The child’s right to have a meaningful relationship with both of their 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.

For more information about the presumption of equal shared parental responsibility, see our blog post here.

Equal Time

When considering whether equal shared care is appropriate, the Court will assess how practical this type of arrangement may be. It may not be practical for children to spend equal time with both parents if their parents live too far apart or where a parent may work shift work or some other job that prevents them being available to care for the children half the time.

Substantial and Significant Time

Where equal shared care is not practical, the Court must then consider if substantial and significant time is practicable. Substantial and significant time is defined as a child spending time with the parent on days that include both weekend/holidays time as well as time during the week. Substantial and significant time allows a parent to be involved in the child’s daily routine, occasions and events of particular significance to the child and to the parent.

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.

What is “meaningful” time if it’s not equal?

If you aren’t seeing your children for an equal amount of time, or even for substantial and significant time, you may ask yourself – what the heck does meaningful really mean when they say a child has a right to a meaningful relationship with both parents.

Meaningful is not, strictly speaking, related to the amount of time or contact that a child spends with each parent. Instead, it refers to the quality of the relationship. What may look like a meaningful relationship in one matter could be very different in another. A meaningful relationship may be maintained by regular phone contact between child and parent rather than the child having to engage in arduous travel too often.

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
– Brittany Shelton, Bersee Legal

What Shared Care looks like in practice.

In most situations a child will spend meaningful time with both parents, who will have an active role in their life. The division of this time can range from a 50:50 week-about arrangement, to an arrangement where one parent is the primary carer and the child spends alternate weekends or some other variation of time with the other parent. The division of this time will depend on what the care routine was like prior to separation, any arrangements since separation and availability of the parents. If the children are mature enough to express a clear view, it may also depend on their wishes to some extent.

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.

Contact: brittany@bersee.com.au
(08) 8725 6969

Legal Secretary: Ms Karen Howard
Contact: karen@bersee.com.au