Section 102 of the Lukautim Pikinini Act 2015 tells the Family Court how to decide a parenting order.
Section 102(1)
In deciding whether to make a particular parenting order in relation to a child, the Court must ensure the best interests of the child as the paramount consideration.
Section 5(1)(a) already makes the child’s best interests paramount in all actions and decisions under the Act, and provides that where they conflict with another person’s interests, the child’s prevail.
Section 102(1) restates it here because a parenting dispute is where the temptation to treat parents’ claims as competing rights is strongest. The Act does not treat a parent as having a right to the child; the child’s interests govern.
What those interests consist of is set out in section 103 — two primary and nine additional considerations.
Section 102(2) — equal or substantial and significant time
In making a decision under this Division, the Court must ensure that the child spends equal time or substantial and significant time with each parent.
The determination is at the discretion of the Court, but includes —
- weekdays and weekends;
- holidays;
- occasions in the child’s life;
- occasions in the parents’ life; and
- an opportunity for the parent to be part of the child’s daily routine.
Section 102(4) is designed to prevent a parent being reduced to a visitor. Time confined to Saturday afternoons is not “substantial and significant”, however many hours it adds up to.
The five elements require a share of ordinary days as well as weekends, of holidays, of the occasions that matter in the child’s life and the parent’s, and — most importantly — a place in the child’s daily routine: school runs, homework, meals, bedtime.
Section 102(2) is expressed as a duty (“must ensure”), but it operates within section 102(1). Where contact with a parent would expose the child to harm, section 103(1)(b) — the need to protect the child from physical or psychological harm from abuse, neglect or family violence — is a primary consideration, and the paramountcy principle governs.
Section 102(3) — where responsibility is shared equally
If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility, the Court must —
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide for the child to spend equal time with each of the parents.
| Step | Question | If no |
|---|---|---|
| (a) | Is equal time in the child’s best interests? | Fall back to substantial and significant time |
| (b) | Is equal time reasonably practicable? | Fall back to substantial and significant time |
| (c) | If both, consider making an order for equal time | — |
Equal time assumes two households a child can move between. Where one parent has returned to a home province, or works at a mine site, or where the journey between households is long or expensive, equal time may be impossible however desirable.
Section 103(2)(f) makes the same point among the additional considerations: the practical difficulty and expense of a child spending time with and communicating with a parent, and whether that will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
Note too that section 102(3)(c) requires the Court only to consider making an equal-time order. It does not compel one even where both conditions are met.
Two different things
Equal shared parental responsibility means both parents share the authority to make decisions about the child — schooling, medical treatment, religion. In the Act’s terms, they share custody, since section 2 defines custody as parental responsibility.
Equal time means the child physically spends equal periods with each.
Section 102(3) links them — an order for equal shared responsibility triggers consideration of equal time — but the two do not have to go together. Parents may share decision-making while the child lives principally with one of them.
Whatever the Court orders, the parent with responsibility carries the section 8 duty to maintain and the section 5(4) obligations, and section 108 allows a separate maintenance order. Section 103(2)(d) makes the extent to which each parent has fulfilled or failed to fulfil the obligation to maintain the child an express consideration in the parenting decision itself.
Sources
- Lukautim Pikinini Act 2015 — ss 2, 5, 8, 9, 101–104, 108
Before relying on anything here, read the current text of the Marriage Act (Chapter 280) and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.