Custody Rights? Child-Focused Parenting Arrangements

What people are usually asking is either: 

• Whether children have rights (to see their father or mother); or
• Whether a father or mother has rights to see their child.

When asked, we explain that the paramount principle under the Family Law Act that overarches everything relating to parenting, is that a Court and separating parents must consider what is in a child’s best interests and what Family Law Act says are the factors when making decisions in relation to their children, inclusive of time with parents.

In Australia, the time a child has with their parents is not about the rights of parents and it has never been. It has always been focused on the child’s needs.

Below we explain:

• What parents should know before determining care arrangements
• What the Court says must be considered 
• What the law says about parenting arrangements 
• Whether the law favours one parent over another; and
• Additional considerations for parents negotiating parenting arrangements, or facing disputes.

What The Law Says About Time With Children

When deciding whether to make a particular parenting order in relation to a child, a Court must consider the best interests of the child as the paramount consideration. 

What Does ‘The Best Interests of the Child’ Mean?

Under the Family Law Act, most recently updated in May 2024, there are six factors that need to be considered when determining if arrangements are in the best interests of the child. These are:

• The safety of the child (including family violence history)
• The child’s own opinion (depending on the age of the child)
• The development, psychological, emotional and cultural needs of the child
• The capacity of each person to provide for the child’s needs (if care is to be shared)
• Relationships the child may have with each parent and other family members; and
• Any other information relevant to the care of the child.

When the Courts are determining whether a shared care parenting arrangement would be in the best interests of the child, they will consider the capacity for each parent to provide for the child’s needs. This could also include how they will practically provide for the child’s needs. 

Let’s say, for example, a child is participating in the usual school curriculum and one parent lives a significant distance from where the child attends school. If that necessitated the child being woken at 5 am and travelling by car or public transport for two hours the Court would have to look at that and determine if that is reasonably practical. 

In Brisbane, for example, half an hour to 40 minutes is considered a typical commute. When travel time is over 40 minutes and into that one-hour travel time, that is when it needs to be questioned if that arrangement is in the child’s best interests.

Any shared parenting arrangements require a high level of communication between the parents to ensure that there is flow and continuity for the child when transitioning between the two houses. 

Often there are times when parents are advised by a child’s school that something is required at short notice. For instance, being given notice on the Monday that on the Friday the child is attending a sporting carnival and requires a new green shirt. The parents must be able to communicate to ensure that the child can be supported in that way, when the child is moving between two residences.

Depending on the level of angst between the parents, it needs to determine how issues like this are going to be managed and how it is going to reflect in the parenting arrangements.

The Court can be quite critical if parents cannot clearly and concisely communicate in an amicable fashion, without putting the child in a position where they are having to be a conduit between them both. Elements like this tie back into what arrangement is in the best interests and also reasonably practicable for the child, or not.

Getting To An Agreement About Parenting Arrangements Or Resolving Disputes

A major focus in Family Law is engagement in the dispute resolution process. The rule is that for all matters in dispute you are required to show a dispute resolution attempt (unless you meet one of the exemptions). This includes clear communication to the other party about the specific issues that you each identify as issues in dispute. Of course, it’s not always suitable for everyone to participate in dispute resolution, so there are always exemptions. 

It remains the requirement in parenting matters that a certificate, known as a Section 60i Certificate, is required to be able to commence any Court proceedings. This certificate indicates that you have been through alternative dispute resolution methods with the assistance of a professional such as mediators, but were unable to come to an agreement.

It is the intention of Family Law and the Court to encourage parents to try to reach an agreement without the Court having to decide for you. And, in the event you do need to go to Court, you will have your matter dealt with, within 12 months.

Do Mothers Have More Legal Rights Than Fathers?

There is a notion that Courts have a preference for mothers and uphold a mother’s legal rights over a father’s legal rights to see their children. This simply isn’t true. 

A child’s legal rights to see their father are equal to any child’s legal rights to see their mother. There is no part in the Family Law Act that says a mother has more rights than a father. The more recent changes made to the Family Law Act in May 2024 have not altered this. What the changes do mean, is that there is no longer a presumption of equal shared parental responsibility which was often mistakenly interpreted as equal time.

Society, family dynamics and workplaces have changed, especially in the wake of the global pandemic. Far more people are working from home or have more flexible working arrangements, than ever before.

It is no longer the case where Mum stays at home and Dad works, for some years. Perhaps historically, when one parent would be doing a commute to or from work, the other parent would be doing the school pick-up and drop-off. Now maybe, with the change in working arrangements, their day has been re-structured, and old roles, gender stereotypes or responsibilities relating to children have evolved.