There are a lot of misconceptions about what parents are
"entitled" to when it comes to custody arrangements for
children. Some have the approach that the father should spend time
with the child every alternate weekend and some have the
perspective that it should be 50/50.
The response by family lawyers when asked by a parent what they
are "entitled" to is simply, that there is no definite
answer. The legislation provides that any Court who is to make a
determination about the arrangements for a child must take into
account, as the paramount consideration, the best interests of the
The Court must take into account what they call "primary
considerations", being the two main factors in determining
what are the best interests. These are:
The benefit to the child of a meaningful relationship with each
of their parents;
The need to protect the child from abuse and family
Once they have taken these two factors into account, they must
also consider any additional factors including the following:
The nature of the relationship the child has with each of the
children's parents and other persons;
The child's views (with weight to be given to those views
depending upon the age of the child);
The extent to which each parent has taken an active role in the
The extent that each parent has maintained the child;
The likely effect on the child due to any changes in the
child's current circumstances or arrangements;
Whether the child is Aboriginal or Torres Strait Islander;
Other factors as deemed relevant.
If the Court orders equal shared parental responsibility then
the Court must consider an equal time arrangement. Realistically,
if the children are very young, the parties have a high conflict
relationship or the parties live far apart, the Court is unlikely
to make an Order for equal time. Once the Court has made a
determination that equal time is not reasonably practical, the
Court will look to other scenarios, including whether the parent
that the child is not living with should spend substantial and
significant time with the child (being, in summary, time during the
week, weekends and school holidays).
Ultimately, there is no set formula for how much time a child
should spend with each parent. The possible arrangements to be made
for a child after their parents separate are endless. The Court has
ultimate discretion and will take into consideration all factors
they believe to be relevant in making arrangements that are in the
best interest of the child.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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