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Can a custody arrangement really be fair?

Reaching agreement on custody can be difficult, with both parents seeking what they believe is “right” or “fair”. TGB associate Melanie Tilmouth explains how the Family Court makes decisions.


Family lawyers are often asked what are “fair” or “the standard” custody arrangements for children following the breakdown of their parents’ relationship. There are no standard custody arrangements that the Court will impose on families and the Family Law Act is designed to look at the needs of the children on a case by case basis.

Parents can also at times of stress,  uncertainty and conflict incorrectly focus on their perceived “rights” as parents rather than best interests of the children when negotiating custody arrangements. This is not to say that the needs of parents are not also important but the Court will always prioritise what is in the best interests of the children.

In their 2011 draft paper “Parenting Arrangements for Young Children” legal academics Judy Cashmore and Patrick Parkinson acknowledged that: “In this difficult area, there is no room for decision-making that is driven by a concern for parental rights or fairness between parents… It may often not be possible to devise post-separation parent arrangements that are optimal for young children, but at least, we should aim as far as possible, to protect… young children from paying the price for adult notions of justice”.

There are a number of factors that Court will take into account when assessing what care arrangements to put in place for children:

  1. The need to protect the children from harm;
  2. The age of the children;
  3. The ability of each parent to support the children’s relationship with the other parent;
  4. The benefit to the children of having meaningful relationships with both parents;
  5. The age of the children;
  6. Any existing arrangement in relation to the care of the children or the arrangement immediately prior to separation;
  7. The wishes of the children;
  8. The maturity and lifestyle of the children;
  9. The capacity of the children to manage the proposed care arrangements;
  10. The distance between the two parent’s homes, and;
  11. The ability of the parents to communicate effectively in relation to the children amongst a number of other factors.

Age can be a particularly difficult factor and there are an increasing number of matters where parents are in dispute about care arrangements for very young children between the ages of birth and approximately 4 years of age. These cases can include various age-specific issues such as whether the child is breastfeeding or circumstances where the parents have never lived together.

While there is no formula that the Court adopts to assess what may be appropriate for very young children, the Court is keenly aware of the need for very young children to have a primary carer or attachment during this period of their life. The Court also understands that disruptions to primary attachment for a very young child can result in poor outcomes for that child in later life.

It can often be the case that the Court will at first order short periods of time on a regular basis, with the frequency and amount of time increasing over time. This allows the parents and the Court to assess whether the children are coping with the care arrangements on a gradual basis.

In addition, section 65DAA(5) of the Act requires the Court to consider what is reasonably practical for the children when considering to possibility of equal care arrangements or arrangements where the children will spend substantial time with both parents. Therefore, what the Court may consider suitable for a very young child is likely to be very different for an older child.

Many parents split amicably and believe they can make an informal custody arrangement work, with no input from lawyers or the Court. The danger in doing this is finding that as the children grow up your family also outgrows the arrangement, but you are now in a position where you can’t backtrack from your original agreement. Given that decisions made in relation to the care of children at the time of separation can have an impact on care arrangements in the future it is important to obtain early, comprehensive advice from a lawyer.

Tindall Gask Bentley’s lawyers are experts in family law, who can guide you through the Family Court process. Doing so eases the stress on your family during what is likely to be a difficult time and ensures your children’s needs are protected. Make an appointment with your nearest TGB office here or register your details here and we’ll be in touch soon.

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