In 2006 changes were made to legislation relating to parenting agreements, and the idea of ‘equal shared parental responsibility’ was introduced into the Family Law Act. Unfortunately, a misconception arose that assumed equal shared parental responsibility meant equal shared time.
What the term equal shared parental responsibility means, is that all duties, powers, and authority that parents have in relation to making long term decisions concerning their child, are shared equally between the two parents.
As family lawyers, it is not uncommon for us to be asked about children’s rights to see their father (or mother), or a mother or a father’s legal rights to see their children. However, the paramount principle under the Family Law Act that overarches everything relating to parenting, is that it is all about what is in a child’s best interests. It is not about the rights of parents. The Act aims to ensure that children can enjoy a meaningful relationship with each of their parents, and are protected from harm.
Parents will spend equal time with a child only where:
- they can agree to this arrangement; or
- a court finds that equal time is in the best interests of the child and is the most suitable arrangement.
In this article we look at the importance of something called a Two-Limb Test, what ‘reasonably practical’ means in Family Law, as well as some considerations for you as you establish your child-focused parenting arrangements.
What is the Two-Limb Test?
The Two-Limb Test is what the Court must consider as a requirement when contemplating deciding an equal time arrangement. One limb, if you like, is that the arrangement is in the child’s best interests and the other, is that it is reasonably practical.
Under the Act there are two primary considerations in determining what would be in a child’s best interests:
- The child has a right to have a meaningful relationship with both parents.
- The child must always be protected from harm and or being subjected to abuse. That is, physical or psychological abuse, neglect, family, and domestic violence.
The Courts have regard to a further 14 factors which are set out in Section 60CC (3) of the Family Law Act. It’s important to keep in mind that not all 14 factors will be relevant to every case and not one factor has more value than another because no two families are the same and no two children’s best interests are the same.
Therefore, the Court will only have regard to which of the 14 factors are relevant to the needs of each individual child and family.
When the outcome of the child’s best interests is not that of an equal time arrangement, the next tier of time that the Court considers is what is called ‘significant and substantial time.’
Significant and substantial time is where the parents of the child are spending time with the child during the week, on weekends, special occasions, and school holidays. The idea is that each parent is substantially involved in the child’s life, not to equal time, but to an amount being that they have significant and substantial involvement.
Even in a significant and substantial time arrangement, the Two-Limb Test is implemented. It is always taking into account what is in the best interests of the child and that the arrangement is reasonably practical.
What does ‘reasonably practical’ mean?
When the Courts are determining if an equal time arrangement would be in the best interests of the child, they consider if the arrangement would also be reasonably practical.
Let’s say, for example, a child is participating in the usual school curriculum and one parent lives a significant distance from where the child attends school. If that necessitated the child being woken at 5 am and travelling by car or public transport for two hours the Court would have to look at that and determine if that is reasonably practical.
In Brisbane, for example, half an hour to 40 minutes is considered a typical commute. When travel time is over 40 minutes and into that one-hour travel time, that is when it needs to be questioned if it is a reasonably practicable arrangement that is in the child’s best interests.
An equal time parenting arrangement requires a high level of communication between the parents to ensure that there is flow and continuity for the child when transitioning between the two houses.
Often there are times when parents are advised by a child’s school that something is required at short notice. For instance, being given notice on the Monday that on the Friday the child is attending a sporting carnival and requires a new green shirt. The parents must be able to communicate to ensure that the child can be supported in that way, when the child is moving between two residences.
Depending on the level of angst between the parents, it needs to determine how issues like this are going to be managed and how it is going to reflect in the parenting arrangements.
The Court can be quite critical if parents cannot clearly and concisely communicate in an amicable fashion, without putting the child in a position where they are having to be a conduit between them both. Elements like this tie back into whether an equal time arrangement is in the best interests and also reasonably practicable for the child, or not.
Parenting arrangements and the new merged Family Courts
With the recent merger of the Family Courts, rules have been changed and new protocols have been implemented.
What seems to be of major focus for the Court is engagement in dispute resolution process. It remains the requirement in parenting matters that a Section 60i Certificate is required to commence any Court proceedings. That certificate indicates that you had been through alternative methods to mutually agree on a decision or a compromise, but were unable to come to an agreement.
The new Court rule is that for all matters you are now required to show a dispute resolution attempt unless you meet one of the exemptions. As well as clearly communicating to the other party what issues are in dispute. Of course, it’s not always suitable for everyone to participate in dispute resolution, so there are always exemptions.
There is a greater focus from the Court to encourage parents to try to reach an agreement without the Court having to decide for you. The goal of the new Court is that, in the event you do need to go to Court, you will have your matter dealt with, within 12 months.
Do mothers have more legal rights?
There is a notion that Courts have a preference for mothers and uphold a mother’s legal rights over a father’s legal rights to see their children. This simply isn’t true. A child’s legal rights to see their father are equal to any child’s legal rights to see their mother. There is no part in the Act that says a mother has more rights than the father. The Act talks about the child’s best interests and that the child has a right to having a meaningful relationship with both parents.
Something that is interesting though, is that arrangements, where the children spend most of their time with their father, are more common in orders that are made when the matter has gone to Court.
Society is changing, workplaces have changed, and family dynamics have changed. Especially in the wake of Covid-19, far more workplaces are implementing work-from-home practices. It is no longer the case where Mum stays at home and Dad works. Perhaps previously when one parent would be doing a commute to or from work, the other parent would be doing the school pick-up and drop-off. Now maybe, with the change in working arrangements, their day has been re-structured, and they have freed up that time.
Considerations for parents
There is no prescribed table of information anywhere that says, if you have children aged two and six, this is what must happen. Every arrangement is determined by the individual circumstances of the family, and that is why it is so important for parents to seek advice from an experienced family lawyer.
We see that it can be hard for one or both parents to put aside their issues with the other parent, and focus entirely on the children’s best interests when it comes to determining parenting arrangements. Investigate what could work between you both. Consider what already exists for the child in their current routine. What hours do you and the other parent work? What are the child’s extracurricular activities and how can they be maintained?
At this point it is important to note that children do not get a say, necessarily, in the final arrangement. Courts may take into consideration a Family Report and consultations with Family Consultants if that has occurred, but these are only one element in determining what is in a child’s best interests.
Protecting your children from these adult issues should be the main concern of any parent. It is important not to criticise the other parent around the child, and not to pressure children to make decisions about their own care. Typically children love both parents and this kind of behaviour can put them in a situation where they feel they must choose, and this can be harmful.
We see that people tend to underestimate how important it is to get legal advice at the earliest opportunity under the assumption that by doing so, indicates that you plan to take your matter to Court. I cannot stress enough that seeing a family lawyer does not necessarily mean that. What it does mean though, is that you will have a much better understanding of the options you have, and you will have a lot more information to assist you in the process.
You may decide that the best method of the dispute resolution pathways for you, is mediation. In the event you go down this pathway, you still need to seek legal advice to talk about your specific circumstances and the ages of your individual children. There can be significant benefits from engaging professional assistance before embarking on this process. It is always best to have specialist advice and insights before you act.
Related: What to Expect in a Mediation
Phillips Family Law is an award winning Family Law practice serving clients across Australia and abroad. Regardless of where you are in your decision making process, we can make you aware of your options. To discuss your situation confidentially phone +61730079898 or secure a time by clicking here.