Following separation, it’s common for parents to think in terms of what they’re entitled to when it comes to sharing custody of the kids. While the world has come a long way in equalising parental responsibilities between men and women, the way this question normally materialises is whether dads have equal rights to mums.
The premise of parents’ rights when it comes to care arrangements for children is problematic. Parents don’t have rights; children do. Broadly, those rights are to know and be cared for by both parents, to spend time and communicate with their parents on a regular basis and to enjoy their culture.
That said, the Court is required to consider whether equal time, or alternatively ‘substantial and significant time’, would be in the best interests of the child and reasonably practicable where it orders that both parents are to have equal shared parental responsibility for the child.
It’s important not to conflate a requirement to consider these things with a presumption in favour of them. All it means is that the Court has to deliberately turn its mind to them, where applicable.
That’s not to say it’s meaningless, however. In Loverdos & Bonner [2022] FedCFamC1A 174, the Full Court of the Federal Circuit and Family Court overturned a decision allowing a mother to relocate interstate with the children because the trial judge had failed to explicitly address these requirements. The Full Court had previously held in Heaton & Heaton (2012) that it was not sufficient to infer from a judgment that these requirements had been considered; they had to be explicitly addressed.
The range of reasons why the Court may find that equal time or substantial and significant time is not in the best interests of the child, or not reasonably practicable, is broad. Section 60CC of the Family Law Act sets out how a court determines what is in a child’s best interests. Reasonably practicability is not as well defined but commonly involves matters such as how far apart the parents live and whether their work commitments allow for them to care for the children in accordance with what is found to be in their best interests.
Where these factors do not result in equal time being ordered, it’s still more common that the Court will make orders for the mother rather than the father to have primary care. This, however, has nothing to do with rights and much more to do with the subsisting tendency in modern Australia for mothers to be the primary attachment figure for their children, whatever the underlying reasons for that may be. It will be interesting to observe updates to the statistics as the concept of the ‘family man’ continues to evolve.
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Article By: Nicholas Smith
Family Lawyer
Nick excels at complex family law matters. He is skilled at distilling dense information and difficult concepts into simple language. Clients who find the court process overwhelming often report feeling at ease with Nick.
This skill is also valuable when Nick appears in court. He regularly does so, including at contested interim hearings where a barrister would otherwise be required.
Nick works across our Sydney and Canberra offices.