When will a Court order that the Children Spend Equal Time with Each Parent

22/03/2018

In considering what Orders the Court (either the Family Court of Australia or the Federal Circuit Court) will make, the Court considers what is in the children’s best interest.  The Court will do this by looking at the following primary (most important) and additional (other) considerations.

It should not be assumed that following separation, the children of the marriage or relationship will automatically be spending equal time with each of their parents. This is not the approach taken by the Courts.

Primary Consideration

The primary considerations that the Court will take into account are:

1.        The benefit of the children having a meaningful relationship with each party.

2.        The need to protect children from physical and psychological harm.  This includes children seeing family violence, being neglected or being physically or psychologically hurt or abused.

The need to protect a child from physical and psychological harm including family violence and abuse will come first ahead of other considerations.

Additional Considerations

The additional considerations that the Court will take into account are:

1.        The children’s views.  The Court will look at how much the children understand and how mature the children are.  The children do not have to express views if they prefer not to.

2.        The kind of relationship the children have with each of their parents and other significant people including grandparents, siblings and other relatives.

3.        How much each parent has participated in making decisions about major long term issues affecting the children including:

  • How much time each parent has spent and communicated with the children during and after the relationship. 
  • Whether each parent has fulfilled or failed to fulfill their parental obligations - such as the paying of child support on time. 
  • The likely effect of any change to where the children have been living or staying including separating them from either parent, grandparents, siblings or other relatives or other people important to their welfare. 
  • The practical difficulty and expenses of children seeing each parent and whether that difficulty will affect their right to have a relationship with each parent; this includes spending time with or communicating with each parent.
  • How much each parent or any other person (including grandparents and other relatives) can provide for the childrens’ physical, emotional and intellectual needs. 
  • The children and each parent’s maturity, background including culture and conditions, sex and lifestyle, and anything else about the children the Court thinks is important.
  • Each parent’s attitude as to responsibilities of being a parent and towards children in general. 
  • Any family violence involving the children or their family members.
  • Any interim, final or non-contested or police issued family violence orders that include children or their family members.
  • Any other considerations the Court thinks important. 

In general the Court will also look at the history of the relationship and children’s care and the events and circumstances that have happened since the parents separated. 

The Court will also look at:

(a)       How far apart the parents live from each other;

(b)      The parents current and future capacity to implement an arrangement for the children spending equal time, substantial or significant time with each of the parents; and

(c)       The parents current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement concerning the child or children.

(d)      The impact that an arrangement would have on the child; and

(e)       Such other matters as the Court considers relevant.

Please do not hesitate to contact Richard Watson, Family Law Solicitor or Shereen Da Gloria his assistant if you and your partner are unable to reach amicable contact arrangements in the best interest of your child/ren or if you and your partner have agreed on contact arrangements and you wish to protect your position or should you have any specific concerns relating to contact arrangements and how the Court will decide.

This is only a preliminary view and is not to be taken as legal advice without first contacting Watson & Watson Solicitors on 02 9221 6011.

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