Often when parents are considering living arrangements for their children, they have to consider whether the children will live with one parent primarily and spend significant and substantial time with the other or whether they will live on an equal time basis.
Is an equal time arrangement the best arrangement for your children? The answer is that is depends on the circumstances. You need to consider the age of the child, whether they have a primary attachment to one parent, the ability for the parents to communicate effectively and the practicality of the arrangement.
Often parents get caught up in their “right” to see their child as much as the other parent and lose sight of what is best for that child. While it is every parents right to see their child (baring exceptional circumstances such as family violence, abuse and neglect) children often don’t count the nights the same way as parents do. Research show us that children value stability, safety and the absence of parental conflict (or at least a minimisation) far more than they value counting overnights.
If an equal time arrangement isn’t suitable then significant and substantial time which incorporates, weekend, weekday and school holidays may work better. You should not consider an arrangement that is less than equal time as a less than arrangement. Provided that you maintain involvement with your child’s activities and schooling you will have involvement in your child’s life. Your involvement in your child’s life should be about quality and not simply quantity of nights.
Bear in mind also that arrangements may need to change as the child grows up. What worked well initially may not work as well later. Try to maintain an open mind and a flexible approach to parenting that is child focused. A parenting arrangement that grows and develops in line with your child’s needs is always preferable. During my time working in family law I have seen matters where once a child reaches their teens the entire parenting arrangement is reversed and the original parent that had significant and substantial time in the early years now has the child live with them and the other parent has significant and substantial time.
Speak to one of our experienced family lawyers about what parenting arrangements may be available and what might suit your circumstances.
What is an equal time arrangement and does it always work?
That is, when the child or children live with both parents equally rather than being based with one parent the majority of time and spending significant and substantial time with the other parent. Equal time is often done on a week about basis, for example, from after school Friday to after school the following Friday and each alternate week.
Occasionally we come across an issue where parents who otherwise have lived in the same area have a change of circumstances which requires one parent to move to a new area. While both parents may still want to have an equal time arrangement, we have to consider the practicality.
Section 65DAA of the Family Law Act 1975 provides that if a parenting order provides, or is to provide, that a child’s parents are to have equal shared parental responsibility for the child, the court must:-
- consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
- consider whether the child spending equal time with each of the parents is reasonably practical; and
- if it is, consider making an order to provide, or to include a provision in the order, for the child to spend equal time with each of the parents.
There has previously been some uncertainty about the application of Section 65DAA of the Family Law Act 1975.
The first question to really look at is what is reasonably practicable? For both parents and the court in deciding whether it is reasonably practical for children to live on an equal time basis consideration should be given to the following factors: –
- Do the parents live in reasonably close proximity to one another (and the child’s school or day care). How far apart from each other do they live?
- Are both parents able to implement an arrangement for the child spending equal time? Consider work times, before and after school care and whether there is additional support of family.
- How is the parents’ communication? Do the parents have the ability to resolve difficulties in relation to the proposed arrangements? Is the relationship high conflict?
- What is the impact this arrangement would have on the child? Consider the child’s age, maturity, attachment to each parent and how much travel to and from school or day care would be required if one parent lived some distance away.
- Any other relevant matters.
While it may seem obvious to a lot of people that to have an equal time arrangement you would need to live in reasonable proximity to one another, we have had matters where parents who have previously lived in close proximity, for one reason or another, one has moved to another area. While the parents wish to continue an equal time arrangement, the practical realities of this are: –
- how much travel time to and from school would each parent and the child need to undertake whilst living with both parents?
- Is it fair for a child to have to travel over hour to and from school each day?
- Can both parents afford that kind of travel time to ensure that the child attends school regularly?
It is also important to consider that while this arrangement may work while children are young, once children are at school the Education Department will not support a child attending two different schools in two different areas.
For example, if one parent is living in the Redlands and another on the Sunshine Coast, or even Gold Coast, Ipswich or Toowoomba, how would you practically implement a parenting arrangement which involves the child living on a week about basis between two households which are such significant distances apart? The answer is it is not reasonably practicable. Even if this arrangement works prior to a child starting school it won’t work once a child does start school.
In Queensland a child can only be enrolled and attend one school at a time. It is simply not possible to enrol a child at two different schools for each alternate week. To be fair I don’t expect a child would enjoy or cope well in an environment where they constantly had two sets of teachers, two sets of friends and sets or schoolwork.
This is the kind of situation that really brings home the importance of being able to practically implement your parenting arrangements.
In a case called MRR vs. GR  HCA 4, the High Court commented that it “is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent”.
The High Court held that Section 656DAA of the Family Law Act 1975 is expressed in imperative terms. What that means is that the court is obliged to consider both the question of whether it is in the best interests of the child to spend equal time with each parent and whether it is reasonably practicable to do so. The court held that it is only when both of these questions are answered in the affirmative, that consideration may be given to making an order for equal time.
The key take away from the above case is that parenting and custody arrangements must not only be in the best interest of the child but they must be practical as well.
Speak to one of our expert family lawyers about parenting and custody matters. Get expert advice before entering into an arrangement that may not be suitable.
McCormick Family Law services the bayside area including the Redlands, Alexandra Hills, Mount Cotton, Redland Bay, Victoria Point, Birkdale, Ormiston, Sheldon, Thornlands and Wellington Point.