‘I Just Want What Is Fair!’ Parenting Arrangements and the Law

As family lawyers, you are coming to us for legal advice and unfortunately the way parenting arrangements are determined according to the law does not always align with what a parent considers “fair”.

What we have to explain to parents in that position is that parenting arrangements are not about what is “fair” for parents, it is all about determining what is in the best interests of the children.

What the law says about parenting arrangements

The Family Law Act provides that the paramount consideration when determining parenting arrangements is the best interests of the child.

In determining what is in a child’s best interests, the law provides that two primary factors must be considered:

• Firstly, the benefit to the child of having a meaningful relationship with both of the child’s parents; and
  
• Second, the need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence. Source: Family Law Act (search for Section 60CC)

There are a number of “additional considerations” that the Court has regard to in determining the best interests of a child and they are set out in s 60CC of the Act. This includes things like:

• any views expressed by the child (and this will be considered in the context of the child’s age, maturity and level of understanding);
• the nature of the child’s relationships with each of the parents and other persons, including grandparents, half siblings etc;
• the extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long term issues and spend time and communicate with the child;
• the capacity of the parents to provide for the needs of the child (including emotional and intellectual needs);
• the maturity, sex, lifestyle and background (including culture and traditions) of the child and either of the child’s parents;
• any other facts or circumstance that the Court considers relevant.

The Family Law Act does not reference parents’ having “rights” when it comes to their children. It talks about the parents’ having “responsibilities” to their children, so as lawyers we help shift a person’s mindset from what they consider is “fair” between the parents and focus on the needs of their children and their responsibilities as parents.

It is an extremely discretionary area of the law as every family is unique and no one family’s circumstances are the same. For example, children with special needs or mental health challenges may not cope with continually moving between households. It may be that these children need more stability and routine than others. It is extremely important that you step back and really consider how the parenting arrangements that you propose will impact your individual child or children, rather than thinking about what might be most convenient for you or the other parent. 

Going through a process of having parenting issues determined can be extremely difficult because what one parent genuinely considers to be in the best interests of their child can oftentimes be at odds with the other parent’s perception. Each parent comes to the table with their different views, perspectives and motivations. Our role is to listen to your situation and your views and provide advice and reality testing about how the parenting arrangements are likely to be determined according to the law. 

It is important to remember this if you are discussing your parenting matters with people who are not experienced in family law. What may have been considered to be in the best interests of the children in one family, may not be the case in yours and there may be various reasons for this. While our family and friends are important support networks during these difficult times, it is important to speak with a lawyer who understands the nuances of the family law system and has experience in the way the discretion is exercised.  A specialist lawyer can work with you to come up with realistic expectations for resolving your parenting matter. It is important to get this advice as early as possible because the decisions you make and the approach you take at the outset of your matter, sets the tone for how your matter will resolve.

Determining parenting arrangements

There are essentially three options for parents when it comes to formalising parenting arrangements:

1. Parenting Plan: this is a written agreement signed by both parties setting out what the parenting arrangements will be moving forward. The limitation with this however, is that it is not strictly enforceable if a parent does not comply;
     
2. Court Order by consent: this is an Order that both parties agree for the Court to make. If one parent does not comply with the Order, it can be enforced through the Court;
    
3. Court Order: this is where a Judge or Registrar decides what the parenting arrangements should be after consideration of all of the evidence presented by the parents. It can be enforced if a parent breaches the Order.

Some parents may end up agreeing to parenting arrangements which they are not completely satisfied with. This may be for various reasons. Sometimes it is because the costs or emotional burden of continuing the matter are too high. For others, they consider it more important to put an end to the conflict for the sake of their children and want to move on with their life and make compromises to get an agreement both can live with. 

The risk if parents cannot agree, and they require a Court to determine the arrangements is that they are handing the decision making to a Judge to make the call about what is best for their children. They are giving up control and asking a Judge, who has never met their children and does not know their family, to decide what is in their children’s best interests.

It is important to listen to the advice you receive from your family lawyer as they are best placed to advise you about how the Court is likely to decide your case if the matter came before a Judge. If you do not take that advice on board, and are unable to reach an agreement with the other parent, you may end up in Court only to get a decision that you (and potentially the other parent) are both not happy with.

The way the Courts are currently operating, it can take up to two years before your matter can be determined by a Judge on a final basis. This can be a very costly, time consuming and emotionally draining experience and something that should be avoided if possible.

How to cope when things aren’t going your way

It is really important to have perspective when you are navigating your way through a parenting matter. You are often making these decisions at the height of one of the most challenging times of your life and emotions are running high.

The reality for some parents is that there may come a day where you are unhappy and dissatisfied with the parenting arrangements that are in place, whether they be on an interim or final basis and whether you agreed to them or not.

In these times, it is important to take a step back and consider the bigger picture.

Firstly, these parenting arrangements will not be in place forever. Before you know it, your children will be teenagers and no matter what anyone says, they will largely dictate their parenting arrangements and who they choose to spend their time with. It is for this reason that Courts are reluctant to make parenting Orders for older children who are closer to 15 or 16 years of age. The relationship that you will have with your children when they are adults, is far longer than the relationship you will have with them as children. 

The point is that in these extremely stressful and trying times it is important to have this perspective. Never underestimate the effect that parenting conflict has on a child. Some people do not always appreciate that while they may not directly be discussing parenting matters with their child, that children are impressionable and are taking everything in. They pick up on all of the stress in their home in addition to the behaviours and attitudes of their parents to one another and other members of their families. All of this stress and pressure impacts the child not only in their daily life (for example, their ability to concentrate at school) but it is also the example that they see of adult relationships and will affect the way they form their own relationships in the future.  

The best thing that you can do as a parent in this situation is to protect your children from conflict. You may not get short term rewards for being the bigger person when tensions are running high, and it is most certainly something that is easier said than done, but you owe it to your children to step up and give them the best chance at a happy and carefree childhood. 

There will come a time when your children will look back on their parents’ separation and the impact it had on their lives. If you directly involve your children in conflict or make decisions that increase the conflict with the other parent making life hard, your children are likely to remember this in their adult life and it may affect your (or your former partner’s) future relationship with them. 

If you are someone who ends up having less time with your children than you’d hoped, my advice is not to focus on the time you wish you could have had. Instead make your focus be the time you do have with your children and the quality of the relationship. This will set you up to have strong and happy relationships with your children (and hopefully grandchildren) in their adult lives.

Take advantage of the time the children are not in your care to do things to better yourself and get on top of life. For example, you might start exercising more, reconnecting with old friends or family, take up new hobbies, or get on top of your to do list. After all, you’ve been dealing with a lot of stress and pressure in your life and need to look after yourself. Then, when the time comes to spend time with your children, you will be in a better headspace and you will be able to just focus on your children and spend quality time with them.

Your relationship with your children will benefit from you:

• not getting bogged down in the stress of conflict; 
• being the best version of yourself as a parent; and 
• spending quality time with your children when they are in your care.

Always look to the bigger picture

Before going down the complicated path of parenting disputes, ask these questions of yourself: 

What is worth fighting over?

How will this impact my relationship with my children in the long term?

It might be hard to imagine the bigger picture of how life is going to be for you and your children, especially if you have just separated. But consider the ultimate goals you have for your relationships and for your family. When you imagine your children’s milestones and special occasions in the future, what do you want those days to look like?