Although you may see such terms as “custody” or “care percentages” commonly used on television or in social media, it is better to avoid referring to custody or care percentages in family law matters regarding children.

Custody and access

There was a time when the Family Law Act 1975 (Cth) (“the Act”) did refer to concepts such as “custody” and “access” in relation to the arrangements for children. The term “custody” was then defined as the right to have daily care and control of a child, and the right and responsibility to make decisions about a child. The term “access” meant the right to have contact with a child.

However, the Act was amended to take out this terminology long ago, in 1996. Those amendments were intended to remove any connotations about children being property and to shift focus away from parental rights, instead focussing on shared parenting and the best interests of children.

Since then, “custody” has been replaced by the concept of parental responsibility, along with who a child lives with and who a child spends time with. The Act defines parental responsibility as “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”.

The law provides that each parent of a child who is not 18 years old has parental responsibility for the child. However, it is possible to change this through a Family Court order or a parenting plan. For example, there could be an order for:

  • Only one parent to have parental responsibility, known as sole parental responsibility;
  • Equal shared parental responsibility, which requires decisions about major long-term issues regarding the child to be made jointly; or
  • A person other than a parent to have parental responsibility.

Although the allocation of parental responsibility can impact on how the living arrangements for a child should be determined, these issues need to be separately considered in light of the child’s best interests. For example, equal shared parental responsibility does not necessarily mean that there should be an equal-time arrangement for a child.

There is currently a presumption in the Act that equal shared parental responsibility is in the best interests of a child, unless a parent has engaged in child abuse or family violence. However, the family law reforms currently being considered by Parliament propose to remove this presumption, on the basis that it is commonly misunderstood.

Care percentages

The Act does not refer to percentages in setting out how decisions should be made about children, although it does refer to “equal time” and “substantial and significant time”.

Substantial and significant time is defined to involve a child spending time with the non-resident parent on both weekdays and weekends, which allows the parent to be involved in the child’s daily routine and special occasions.

A child’s best interests are the paramount consideration in determining who a child should live with and what time they should spend with other people. The Act lists various factors to consider in deciding what is best for a child, including:

  • The need to protect the child from abuse, neglect or family violence;
  • The benefit to the child of having a meaningful relationship with both parents;
  • Any views expressed by the child;
  • The nature of the child’s relationship with each parent and other people;
  • The extent to which each parent has fulfilled their obligation to maintain the child;
  • The likely effect of any changes to the child’s circumstances; and
  • The practical difficulty and expense of a child spending time with and communicating with a parent.

Where “care percentages” do become relevant is in the context of assessing child support obligations. In determining what amount of child support is payable, the Child Support Agency uses a formula based on the income of each parent, their “care percentages” (based on the number of nights per annum that the child stays with each parent) and the child’s age.

It is best not to talk in terms of care percentages in expressing what arrangement you propose to have for your child, because this could be taken as an indication that you are more motivated by increasing or limiting your child support payments, rather than what arrangement is in the child’s best interests.

Although the extent to which each parent has financially maintained a child is one of the multiple factors to be considered in deciding what arrangement is in the child’s best interests, child support should otherwise be a separate legal issue.

Aside from being inappropriate for the reasons explained above, using expressions like “full custody” or “50% care” can be a red flag that someone may not have obtained legal advice yet.

If you would like advice in relation to the arrangements for your children, please do not hesitate to contact Lynn & Brown Lawyers, where we have a number of Family Lawyers who are happy to discuss these and other family law concepts with you.

About the Author: Kate was admitted to the Supreme Court of Western Australia in 2012 and has practised family law for many years. She is motivated to help clients achieve positive outcomes as efficiently and amicably as possible but also has experience in court proceedings.

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