Australia: I want equal time with my children - what will the Family Court say?

Last Updated: 11 June 2015
Article by Simon Creek

It is only natural in most Family Law child related matters that each parent would want to spend as much time with their children as possible. One possible solution to this problem is to seek Final Orders that the children spend equal time with each parent; however what will the Court say?

It is important to remember that, when making parenting orders, the Family Court is not interested in the "rights" of a parent to spend time with their children. Instead, the Family Law Act 1975 (Cth) ("the Act") at section 60CA states "In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration." This means that the most important factor for the Court to consider is the best interests of the child/children.

In many circumstances, particularly where very young children are involved, while it may be convenient or desirable for the parent to have equal time with their kids, this arrangement may not be in the children's best interests.
How a court determines what is in a child's best interests is set out in section 60CC of the Act. The primary considerations the Court will take into account when making parenting orders are:

  1. the benefit to the child of having a meaningful relationship with both of the child's parents; and
  2. the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

In addition to these primary considerations, section 60CC of the Act goes on to list many secondary considerations.

One important secondary consideration is the likely effect of any changes in the child's circumstances as a result of the orders, including the likely effect on the child of any separation from the parent who is the "primary caregiver". This is often most acutely relevant in proceedings involving very young children or infants.

The Family Court carefully considers the best interests of very young children when making decisions about timespend. In these situations, the court is often faced with a mother that holds the view that infants need to spend time with them, rather than the father, and fathers who are not getting enough time with their child and feel, as a result, that they are not building a relationship with the child. As a general rule of thumb, courts tend to favour the idea that it is appropriate that infants have one overnight stay per week with the non-resident parent, per week, per year of their life. This approach leads to a gradual increase in overnight time with the non-resident parent that may, in fact, end up in an equal time arrangement.

Parenting orders can be complicated and, even in the circumstances where parents agree that there should be an equal time arrangement, the Court may not ultimately arrive at the view that such an arrangement is in the best interests of the children. As such, it is always important to seek advice from a Family Lawyer when entering into child related orders or when commencing proceedings in relation to children's matters.

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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Simon Creek
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