One of the most common misconceptions we find among clients is the expectation that parenting arrangements will be divided equally. However, the Australian family law system focuses only on the best interests of the child in all parenting matters. For parents to receive equal time in a parenting order, the Court must weigh various factors based on the parties’ case.
Key takeaways
Parenting arrangements can separate time spent with each parent from the parents’ responsibilities.
There are a lot of factors that go into the Court’s decision regarding parenting time.
Family law doesn’t discriminate based on gender or other characteristics.
There are steps you can take to organise equal parenting time.
Does equal parental responsibility mean equal parenting time?
If you read through the Family Law Act 1975, you’ll notice that it doesn’t make any references to ‘child custody arrangements’. Instead, it refers to parental responsibility and where the child spends time. The two key aspects of parenting matters are:
The decision-making obligations of each parent in relation to their child’s long-term care. This includes issues like the child’s education, medical care, and cultural or religious instruction.
The child’s living arrangements. This covers how much care each parent is responsible for, and how visitation schedules are handled.
Court orders often differentiate between equal decision-making responsibilities and equal time arrangements. One does not necessarily entail the other. This can be a source of a lot of confusion.
What the Court considers before ordering equal time
The Federal Circuit and Family Court of Australia (FCFCOA) takes many different factors into account when deciding on appropriate parenting time. What the Court considers and the weight it gives to them depends on the specifics of each case. Some common issues that can affect the FCFCOA’s decision include the following:
The child’s safety concerns about the child are one of the main issues governing parenting arrangements. Proposed arrangements mustn’t expose the child to family violence or neglect. The Court looks at whether there are existing domestic violence orders, the findings of any family reports, or other evidence.
The child’s views of the FCFCOA may consider the views of the child, depending on the child’s age. Very young children may not have the capacity to express themselves, but school-aged children or older could be consulted.
The child’s developmental needs, the Court has to consider arrangements that meet the child’s developmental, emotional, and cultural needs. Giving both parents equal time needs to meet the child’s development needs.
Each parent’s capacity need to have the capacity to meet their child’s developmental needs. This could include assessing their ability to manage day-to-day issues like school routines and extracurricular activities.
The effect of a 50/50 arrangement, the FCFCOA can take into account any other factors that it considers to be relevant to the matter. This can involve looking at the overall effect of the arrangement on the child’s well-being.
Can a father get 50/50 Custody Australia
There is some concern among some parties that the family law system is stacked against fathers seeking to spend equal time with their children. Australian family law doesn’t discriminate on the basis of gender or other characteristics. It’s guided entirely by what’s best for the child.
To address these concerns, we can look at statistics on care arrangements from the Australian Institute of Family Studies (AIFS).
From Child Support Program data, almost 3 out of 5 arrangements gave mothers above primary care (at least 87% of nights per year). About 1 out of 5 had mothers as the primary caregiver (between 66% and 86%).
About 1 in 7 couples had shared care arrangements (35% to 65% of nights per year spent with both parents).
The trend in this data from 2015 has tended toward shared arrangements, and less toward one parent having most of the care. While it still indicates that mothers are more likely to be a primary carer, earlier AIFS research (published in 2019) shows that most (97%) separated parents do not go to court to decide their parenting arrangements. However, about 16% used family dispute resolution services or lawyers.
How to move towards an equal care arrangement
Most parents want to have meaningful contact in their child’s life. While children spending equal time with both parents is relatively rare, there are particular circumstances where it may be appropriate. Typically, the easiest way to organise 50/50 care is by agreement with the other parent.
A parenting plan is an informal written agreement, but allows parents to be very flexible in how they want to approach care. Consent orders are legally binding, but need court approval. Here are basic steps to consider if you want to organise equal care.
Focus on the child's best interests
The child’s best interests are the paramount consideration in parenting matters, not a parent’s own desires when it comes to scheduling. Reflect on why you believe equal time is best. A 50/50 split requires both parents to be equally capable of meeting the child’s needs at their developmental stage.
The vast majority of parties genuinely want to do what’s best for their child’s upbringing. But when parents separate, it can be difficult for judgment to be clouded by animosity towards a former partner.
Gather relevant evidence
Prepare information that supports your ability to meet your child’s needs. It’s important to show how your circumstances can accommodate equal parenting time. This could include:
School logistics and how you can manage pick-ups and drop-offs during the school week.
Details of your work commitments.
Your involvement in day-to-day care and decision-making.
Hold discussions with your ex-partner
Explore reasonable proposals with the other parent. Write down a parenting plan that works for you both and covers the major aspects of the child’s care. This typically includes provisions for:
How you’ll handle the child getting to school and who will be responsible for picking them up.
How the child’s time will be divided between your households. Will the child live at each house on alternating weeks?
Special provisions to manage significant dates like birthdays and Christmas.
What sports and other extracurricular activities will the child be involved in?
It can be stressful for a child to constantly be transferred between two households. For example, the parents may have slightly different routines that make it difficult for the child to concentrate at school. Having the child live in two households also tends to work best when the parents live close together to reduce the impact of travel.
Get professional legal advice
Even if you’ve agreed to an arrangement, it can still be helpful to get advice from a family lawyer. Parenting plans may be used as the basis of a consent order application. Your lawyer can advise on what the FCFCOA looks for and the likelihood of the Court accepting your proposal.
If you’re finding it hard to agree, a lawyer can help you pursue family dispute resolution (FDR) with an FDR practitioner. These are neutral third parties that assist separated families to resolve their significant differences.
Conclusion
Despite what’s commonly believed by many parties, equal time in parenting arrangements is relatively rare. The FCFCOA is only concerned with the child’s best interests and assesses parenting order applications based on various factors. If you’re looking to arrange for equal care, making an agreement is often the most effective way. A family lawyer can help review a proposal and organise mediation if needed.
Are you looking to organise equal parenting time?
Our experienced family lawyers have been providing practical guidance to parents for over a decade about parenting matters. If you’re looking for legal guidance, contact us today for a free discovery call.
