In our experience, many people believe that equal time is the norm in child custody arrangements. That is not the case.

The Federal Circuit and Family Court of Australia (FCFCOA) operates on one key principle – the best interests of the child. We often see people, particularly self-represented litigants in Court refer to ‘father’s rights’, ‘mother’s rights’, or ‘grandparent’s rights’ to spend time with a child. In the family law jurisdiction, it is not about anyone else’s rights apart from the child’s rights. The focus is on what is best for the child or children. While it is generally beneficial for a child to have good relationships with both parents, that is not necessarily the same thing as spending equal time with each parent.

In fact, depending on the age of the children, equal time may be inappropriate.

Psychologists generally say that children younger than 5 or 6 need at least one primary attachment. In a traditional home, they might have two primary attachments. When parents separate, equal time can lead to arrangements where there is no primary attachment at all. Very young children may change houses frequently and not spend enough time with either parent.

Historically, mothers have been the primary carers for young children. In most cases, when parents separate, the mother is still the primary carer. She also often stays in the family home. Children have a right to see their father regularly, but there is also a need to maintain that primary attachment. For a child up to the age of about 5 or 6, spending more time with their mother in a home they are familiar with is often the best outcome.

Older children can manage equal time arrangements much better, but those arrangements will only work when parents can act co-operatively and put their child’s needs above any animosity they feel towards their ex-partner. Unfortunately, few people actually manage to do that, and if you are one of the people who have a positive co-parenting relationship with your ex, you should feel proud of having achieved that for yourself and your children.

Court Orders for Young Children (under 5)

As children grow up, they become more capable of separating from their primary attachment and spending more time with the non-resident parent. It is a gradual process. It is important to understand that a judge will ordinarily be very reluctant to put orders in place for a 2-year-old which go right through to the age of 16. What your child needs now will be different to what your child needs in 2, 5, and 10 years’ time.

It might be easier for the non-resident parent to accept less access now, if they can see how it will change in the future, but on the other hand, it is difficult to plan future parenting arrangements in detail. How are you supposed to know how your child will handle different arrangements when they are older? Some children might be ready for an equal time arrangement by the age of 12, some won’t.

What we tend to see in circumstances where parenting orders are being made about very young children, is a gradual increase in time depending upon the child’s age. Wherever possible, we recommend speaking to a family lawyer before you make any agreements about the future. It is harder for the children (and for you too!) if you must change arrangements once they are already set up. It can lead to extra conflict during what is undoubtedly already a difficult time. If you already have parenting orders in place detailing time arrangements and you no longer consider those arrangements to be in your child’s best interests, speak to us before you make any decisions.

In one of our recent cases, a 21-month-old child had been spending five nights per fortnight with his father. We advised the father and his parents (whom he was staying with) that this was inappropriate. They were unhappy with this at first.

We discussed what is in the best interests of the child and what the social studies and psychologists say is appropriate at different ages. We reassured them that access would change over time, and suggested at least one night per fortnight initially, moving very quickly to two nights. Then by about the age of 4, it would probably be five nights a fortnight again. With education and understanding, we were able to develop parenting arrangements which protected the child’s right to see his father and balanced it against the overall wellbeing of that child.

KLH & Associates is a boutique law firm based in Castle Hill in the Hills District that offers specialist family law advice. We also practise in the areas of Conveyancing, Wills & Estates, Commercial Law, Building & Construction Law, and Criminal Law. This post is only intended as a general overview and is not intended to be construed as legal advice. If there are any matters that you would like advice on, please contact us on (02) 9894 9133.