In most custody matters each parent desires to spend as much time with their children as possible. Though this may be the parent’s wish, the Family Court will always prioritise the best interests of the child or children.
The Family Law Act 1975 (Cth) 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.” Often when young children are involved, the Court may not find equal time with each parent to 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 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 time with parents. 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. Generally, 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.