Parental responsibility and time spent with a parent

Parental responsibility and the time each child spends with their parents are often misunderstood to be the same thing.

However, whilst there is a presumption of parental responsibility there is not a presumption about the amount of time the child spends with each of the parents.

Parental responsibility is defined as “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”.

What this means is the court will automatically assume that each parent has the right to be involved in the major long term issues, such as education, religion, health, names changes and living arrangements, but not automatically presume that each parent will spend the same amount of time with the child.

Expect in cases of abuse or family violence, when making a parenting order, the court must apply a presumption that it is in the best interests of the child for their parents to have equal shared parental responsibility for the child.

As this presumption applies to all cases involving parenting orders, it is not necessary for either party to have actually sought an order for equal shared parental responsibility for the court to make an order to that effect.

Where there is an order of shared parental responsibility and there is a requirement to make a decision about a major long-term issue in relation to the child, the decision must be made jointly, and each party must make a genuine effort to come to a joint decision. There is no need to consult over issues which are not major long-term issues.

In parenting disputes, the main dispute is usually around where the children will live and how much time the children will spend with the other parent.

When making a decision, the court must consider the best interests of the child and practicability.

Where a court does not order equal time for each of the parties, it must consider whether the child spending substantial and significant time with each of the parties would be in the best interests of the child; and reasonably practicable.

Substantial and significant time with a parent means that the child spends time with both parties on:

1. days that fall on weekends and holidays; and
2. days that do not fall on weekends or holidays; and
3. the time the child spends with the parent allows the parent to be involved in the child’s daily routine; and occasions and events that are of particular significance to the child; and
4. the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

When determining practicability, the court must consider:

• how far apart the parents live from each other; and
• the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
• the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
• the impact that an arrangement of that kind would have on the child; and
• such other matters as the court considers relevant.