Parenting Arrangements and Best Interests of the Children

A recent family law matter we dealt with illustrates the importance of always remembering that any parenting arrangement that is put in place, temporarily or permanently, must be in the best interests of the children. This means that the arrangements must be suited to the age and developmental needs of the children. The arrangements must also be practicable taking into account the circumstances of the parents.

Sandra, Ben and their girls

Sandra was a young mother of two girls aged three and one. Sandra had separated from the girls’ father, Ben, when the youngest was three months old. She had commenced navigating a parenting arrangement via research she found on the internet and conversations with friends who had ‘been through it all.’ Sandra and Ben reached an agreement that the girls would live with Sandra from Monday morning to Friday Morning and with Ben from Friday Morning to Monday Morning. Sandra was of the view that this arrangement was as close to an equal time arrangement, and it fitted in with Ben’s work schedule.

The arrangement was in place for approximately six months when Sandra noticed that the girls’ behaviour was changing and the communication between her and Ben was deteriorating. Sandra attempted to solve the issue, sitting up late at night after the girls had gone to bed and searching the internet for information about parenting matters. Sandra read that an equal time arrangement had to be considered in all parenting matters and that if she did not encourage a relationship between the girls and Ben then she might ‘lose’ them. The fear of losing her children kept Sandra awake and she told herself she would manage the parenting arrangement despite the difficulties it was causing her.

What Sandra did not turn her mind to was that whilst a court must consider an equal time arrangement between a mother and father, such an arrangement will only be ordered if it is in the best interests of the children’s and if it is reasonably practicable in the circumstances.

What is in the Best Interests of the children?

When Sandra approached Armstrong Legal, we provided her with advice as to how the Family Law Courts determine what is in a child’s best interest. This is by reference to the Family Law Act 1975 (Cth) s60cc, which provides: 

The primary considerations for the court when determining what is in the best interests of the children are:

• The benefit to the child of having a meaningful relationship with both parents.
• The need to protect a child from harm, whether physical or psychological, including the need to protect them from abuse, neglect or family violence. 

The Act makes it clear that the court must give more weight to the need to protect a child from harm.

Additional considerations for the court in assessing the best interests of the children are:

• The child’s views, taking into account their maturity and level of understanding.
• How the child relates to their parents and to others.
• Whether the parents are able and willing to facilitate and encourage a proper relationship between the child and the other parent.
• The effect of any change in circumstances of the child, including separation from a person they have been living with.
• Any expenses and practical difficulties arising from a child spending time with and communicating with a parent.
• Each parent’s ability to look after the child’s needs.
• Characteristics of a child or parent that the court thinks are important, including maturity, sex, lifestyle and background.
• The rights of an Aboriginal or Torres Strait Islander child to know and take part in their culture.
• Each parent’s attitude to the child and their parental responsibilities.
• Any domestic violence involving the child or a family member.
• Any domestic violence orders applying to the child or a member of their family. 
• The benefits or otherwise of making the order that is the most unlikely to lead to future applications and hearings.
• Whether each parent has been meeting their parental responsibilities, including whether they have been involved in the decision-making about major long-term issues about the child, spending time with the child, communicating with the child, maintaining the child, and facilitating the other parent’s involvement in these aspects of the child’s life.
• If the child’s parents have separated, any events and circumstances since separation.

In considering the above, what Sandra failed to consider when assessing what was in the best interests of the children was their very young age and what may be developmentally appropriate for them. What further complicated the matter was that Ben now lived a two-hour drive away from Sandra. 

Sandra and Ben had discussions and it was common ground that neither Sandra nor Ben could get the children into a good routine. Sandra reported that when the girls came into her care on a Monday it was difficult to put them to bed and feed them at the usual times. Likewise, Ben reported that when the girls came into his care, it was difficult to put them to bed or feed them at the times he usually would. 

One day Ben advised Sandra that he was not returning the girls to her as he alleged that she was unable to ensure the girls routine. Sandra was devastated and lost. The information she had read on the internet suggested that the girls had just as much right to be with Ben as what they did with her. 

Sandra sought our assistance and an urgent Application was made to the Federal Circuit Court of Australia seeking that the boys be returned to Sandra and that the girls spend one night per weekend with Ben from 3:00pm Friday to 3:00pm Saturday with such time to increase as the girls got older.

After discussions with Armstrong Legal and being directed to articles on the development theory, Sandra was confident that reducing the time between the girls and Ben now would mean that the girls could have a more meaningful relationship with Ben and the time could increase as the girls got older.   

The judge agreed with Sandra’s proposal and made orders as she sought. Shortly thereafter, Sandra and Ben attended mediation with the assistance of lawyers that resulted in a parenting agreement being reached that provided for the following:

• that the girls live with Sandra and spend time with Ben;
• that the girls’ time with Ben commence with one night a week and gradually increase until an equal time is being spent with each parent on a week-about basis;
• that the equal time week-about arrangement commence when the youngest girl reaches the age of seven 7, provided that Sandra and Ben still live within close proximity of each other. 

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.