This is a question family lawyers often hear when dealing with children’s arrangements. To answer this question, we must look at the guiding principles of the Family Law Act 1975 (Cth) (“the Act”)
Under the Act, there is a presumption that following separation both parents will continue to have ‘equal shared parental responsibility’ for any child of the relationship, subject to any existing Court Order. Equal shared parental responsibility means that both parties have the ‘right’ or ability to play a role in decision making for any major issues, such as schooling and medical decisions.
There is also an obligation on both parties to facilitate a meaningful and significant relationship between the child/children and the other parent.
These principles do not apply if there are issues relating to family violence, child abuse, illicit substance or alcohol abuse, or any other factors which may be detrimental to the child’s best interest or that will put the child at risk of being abused, either physically or emotionally.
This is a common misconception with the answer often not clear cut. There is no ‘one size fits all’ formula. It depends on a variety of factors and varies from case to case.
It is important for parties to be aware that shared parental responsibility differs from equal time spent with a child. Having equal parental responsibility does not automatically entitle parents to equal time or ‘week about’ arrangements and arrangements regarding custody (formally called ‘lives with’ orders) should be made in the best interests of the child.
Whilst many parents think equal time is the best arrangement post separation, as noted above, in some instances this is simply not the case.
Equal parenting or week about arrangements can sometimes lead to extra pressure on the children, particularly once you factor in the children’s schooling and extra-curricular commitments, age, and any health issues.
Parents also need to factor in their own work obligations, lifestyle, financial means and other similar ‘life commitments’, which may impact on their ability to spend meaningful time with the child while in their care.
Consider the case of a recently separated couple where one parent works full time, while the other works school hours. Is it really in the child’s best interest to be placed in child care or the care of other third parties (such as baby sitters, other parents from school or relatives) before or after school regularly while their parent is working, if the other parent is able to care for the child instead during those times?
In cases such as these, the week about arrangement may place too much of a burden on the child’s psychological state and ability to be apart from one parent more than the other. This is particularly the case for younger children who may still be dependent on their primary carer.
Both parents ability and capacity to care for the child needs to be taken into account before equal time is simply assumed. Any arrangements or Orders made following separation regarding each parent’s time with their child should focus on the rights of the child and needs to be in the best interests of the child, not the parents or what the parents perceive to be their ‘parental rights’.
Unfortunately, if separation occurs in high conflict or emotional situations, the response from some parents is often to restrict the other parent’s time with the child/children.
In these situations, the best thing to do is to communicate with the other party in writing, via text messages or emails, in a civil and polite manner to try and arrange time with the children.
If they continue to refuse or have regular excuses as to why you cannot see the children, it is best to ask them to explain their reasons in writing. That way you can directly address their concerns.
It is important throughout all of this to not put the child in the middle of any discussions or in a difficult “he said/she said” situation by telling the other parent what the children have said to you or messaging the child directly asking to see them behind the other parent’s back. This puts pressure on the child which can result in them telling each parent what they want to hear, leading to confusion and further conflict.
If a parent continues to withhold a child and you cannot resolve the situation amicably, the first point of call should be to enter into mediation to try and resolve the matter. This can be done through either government mediation services or private mediators.
The benefit of mediation is that it provides both parties with the ability to discuss their concerns about parenting matters with an independent mediator, which may provide them with a better perspective on what is in the best interest of the children.
If mediation is unsuccessful or not suitable in your situation, and the other parent continues to withhold the children, you should seek legal advice.
Initially, your lawyer might attempt to negotiate with the other party via solicitors to try to make formal arrangements for the children, which can then be converted into a parenting plan or preferably, Consent Orders.
We generally recommend Consent Orders over a parenting plan as it provides parties with the benefit of having legally binding Court orders in place, without the need to actually attend Court.
That said, depending on the age of the children and the relationship between the parties post separation, a parenting plan may be more suitable for your situation. This is often the case if the children are still quite young as locking in final orders which remain until the child/children turns 18 may not provide the flexibility required to take into account the child’s life changing as they age.
If after this no agreement can be reached, issuing Court proceedings is the final resort.
Issuing Court proceedings in either the Family Court of Australia or the Federal Circuit Court can be an expensive and drawn out process, both financially and emotionally. It is not a ‘quick fix’ however and your matter can sit before the Courts for 12 months, if not longer, and that is often without a Trial date.
The Court will not make any final orders until it has had the ability to investigate what the best interests of the child/children are in each case. This may involve hearing evidence from both parties through Affidavit material, and obtaining independent expert evidence such as family assessment reports prepared by psychologists or family consultants.
The Court may also grant permission for parties to subpoena certain evidence, including police/criminal records, health records and records relating the children, for example, education records or child protection notes and files.
The Court will also try and encourage the parties to resolve the matter out of court by way of further mediation or settlement discussions before proceeding to Trial.
Court proceedings should only be issued once you have exhausted every last avenue in trying to negotiate arrangements with the other party out of court or if there are exceptional or urgent circumstances, such as allegations of child abuse, illicit substance or alcohol abuse or relocation issues.
Before issuing proceedings, parents should remember that the Court is there to assess what is in the children’s best interests, and not the parent’s best interests.
If one parent is withholding the children from the other, there can be benefits of proceeding to Court, as the issuing parent will have the opportunity to put forward to the Court their position. Depending on the particular situation, there can be orders obtained which provide for regular time with the child on an interim basis until the matter is resolved.
Independent legal advice should be obtained before issuing proceedings. An experienced family lawyer can advise you on what is likely to be a reasonable or realistic outcome at Court, and whether there are any other options available to you before taking this step.
This article was written by Senior Associate, Natasha Budimski.
Practice Area: Family Law