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