The Parent Trap – “Time spent” & “Responsibility” Battles
Updated: Aug 19
What does parental responsibility mean?
Parental responsibility refers broadly to a parent’s right to have a say in the children’s long term decisions regarding issues such as medical care, education, living location and religion.
There is an automatic presumption of joint parental responsibility (where both parents get a say) and in order to get sole parental responsibility, you have to rebut this presumption.
Sole parental responsibility may be granted to a parent on a number of grounds, including:
a) for practicality purposes when perhaps one parent has not had any contact or involvement with the child for a long time (and is likely not going to continue having any involvement);
b) when there has been significant family violence and/or risk to the child by the other parent which would limit their involvement with the child and contact with the other parent;
c) when a parent has used parental responsibility as a method of controlling and obstructing the care of the child by the other parent or as a method of continuing to harass the other parent.
The reasons for a grant of sole parental responsibility are not exclusively limited to the above examples as every family is different with a different set of circumstances – the Court will consider the various arguments put forward by the parents regarding their claim for joint or sole parental responsibility.
It is generally considered in the best interests of a child to have both parents involved in the long term decisions affecting that child this principle is not an easy one to refute unless there are significant reasons for doing so.
What does “time spent” mean?
A Court will usually make orders for a child to live primarily with one parent and then spend time with the other, depending on the age and circumstances of the child.
Time spent will refer to how much time the non-primary carer parent may have with the child and can be as broad as “by agreement by the parties” or as specific as narrowing times, days and hours spent with the child during school terms, in particular years, over school holidays and on special occasions.
Time spent orders can be negotiated by the parents and then ordered by consent of the parties, or can be determined by the Court in a final hearing.
If a matter proceeds to final hearing, you will usually find that prior to the hearing date, the Court will have requested that expert evidence is given by way of a family consultant report (whether Court appointed or privately appointed), and other experts such as psychologists and psychiatrists may be involved. Courts may also sometimes involve parents in co-parenting programs during this time.
There is no guaranteed formula as to how much time you may expect with your child, as again, this will depend largely on the individual circumstances of each family.
Our family lawyers can give you sound advice as to the factors which may impact how much time the parents may likely expect or would be reasonable to expect if the matter proceeded to Court.
What if I don’t want the other parent to spend time with the child?
There is a natural and automatic presumption that children having a relationship with both parents is vital to their best interests. There must be significant reasons as to why a child may be prohibited from spending time with the other child and this usually includes genuine and immediate risk of family violence or abuse to the child.
Even in circumstances where a parent may have committed family violence, or have other issues such as substance abuse problems, a Court may order that a child spend time with that parent under supervision.
It is very uncommon for a Court to determine that a parent spend no time with their child save for exceptional circumstances.
The other parent hasn’t made contact in a long time – how do I get a passport for my children?
If you are seeking to obtain a passport and have been unable to contact the other parent in a long time (or if the other parent is blatantly obstructive without good or reasonable cause), an application can be made to the Court to obtain a passport without the consent of the other parent.
This may be done by way of Initiating Application which then must be accompanied by an Affidavit and other documentation.
The Affidavit will detail the basis under which you seek the orders and must have a proper basis – for example, it is not enough to tell the Court that you have tried asking once and they’ve just refused once.
An Application to the Court should not be made lightly.
Can I move interstate/overseas with my child?
Some parents assume that if they’re the primary carer, they’re allowed to move wherever they please. This is not the case.
If you have not sought or obtained the consent of the other parent to move interstate or overseas with a child, then you may find that an urgent application by the other parent may be made to the Court injuncting (prohibiting) you from going interstate or overseas. This will be particularly true in circumstances where the other parent was still spending time with the child.
You may then find yourself involved in sudden Court proceedings which would stop you from going anywhere until the parenting matters are resolved.
Breaching such a Court order would likely result in a warrant being issued against you for your arrest.
The circumstances of the move, and whether or not the other parent agrees to any proposal you put forward about still seeing the child and how that will be implemented, will impact whether or not the Court will allow you to do so.
Parenting matters in family law are a complex and emotional area which require careful consideration and advice – not only because of the way it impacts each parent but the overall well-being of the child and their future relationship with each parent.
The relationship you have with the other parent, as well as the child, often exceeds the 18 year mark of adulthood once you consider high school graduations, university graduations, weddings, birth of grandchildren and other significant life events which bring all the parties into each others’ lives again.
As such, it is important for the parents to be given practical and realistic advice about the approach they should take to addressing the legal matters which impact this lifelong relationship.
Amy Yu Lawyer ELVIN LAWYERS