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“It’s not fair”


“I have a right to see my children”

“You have no right to prevent me from spending time with my kids”

“It’s only fair that the kids live with us equally”

“It’s my time when the kids are with me, and you’re not to contact the kids”

I’ve had lots of practise explaining that the law, in its present form, renders each of the comments above deeply flawed.

Why? In short, it transpires that you have no rights as a parent. You have obligations, and responsibilities, but no rights as such.

First and foremost, the Family Law Act sets out some clear criteria or considerations for how to determine what is appropriate for children living in separated households. Effectively each child, under that Act, has the right to a parenting arrangement which is reflective of those considerations and the child’s unique needs.

The most important consideration is the need to protect a child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. The next most important consideration is the need to consider the benefit for each individual child of having a “meaningful relationship” with both of the child’s parents. That doesn’t mean a relationship premised on equal time, and what is meaningful depends on the child in question, but will be heavily influenced by the quality and nature of the relationship pre-separation.

The Family Law Act then goes on to identify the considerations which will dictate what is in the best interests of each unique child. Central to these considerations is a very clear emphasis on an arrangement which is developmentally appropriate for that child, not what is fair to that child’s mum or dad. Considerations include:

  • any wishes expressed by the child (albeit the weight on these wishes will rely upon the child’s age and maturity);
  • the nature of the child’s relationship with those around him or her;
  • the extent to which both mum and dad have spent time with the child, involved themselves in important decisions, financially supported the child and communicated with the child;
  • the likely impact on the child of any change to the current situation, and any separation from a parent or important caregiver;
  • the capacity that each parent has to provide for the needs of a child, including their intellectual and emotional needs;
  • the child’s culture, and the capacity of each parent to assist that child to engage with their culture and traditions;
  • the attitude that each parent demonstrates to the responsibilities of parenthood;
  • any family violence involving the child or a member of the child’s family.

The term “child focussed” is used regularly, and arguably used flippantly, in this jurisdiction. True child-focus means doing justice for a specific child given that child’s specific needs at a point in time. Children transition, grow and their needs change. Having less time when they are infants does not equate with less time later. Quite the opposite in fact. If a solid and secure parenting base is built for a child, attachments respected, and a child’s psychological development prioritised, then the child is more likely to move confidently to an equal time arrangement when they are old enough to flourish in that environment.

It also means that if a child needs contact with the other parent during time in which they are in your care, then they need that contact and it needs to be facilitated.

Parenting is not fair, and certainly parenting following separation is not fair and particularly where conflict is uncontained. Much can be done where one parent is deliberately engaging in conduct which is not co-operative and intended to exclude the other parent from a child’s life and important parenting decisions. Dr Jenn McIntosh and her organisation, Children Beyond Dispute offers some exceptionally valuable content online about building a secure parenting base after separation, and parenting around conflict.

There are some central tenets flowing from Dr McIntosh’s research which have potential to offer enormous comfort and direction. Those that resonate for me include:

  • If managed well by the grown-ups, separation doesn’t have to be harmful for children in the long run;
  • In the short and long term, the greatest risk posed to children is ongoing adult conflict that doesn’t get sorted out;
  • Kids will cope with some conflict as long as:
    • the conflict is not violent nor frequent
    • parents work at sorting it out
    • kids understand they are not to blame
    • kids are not caught in the middle of it.

Our court system has reflected great faith and reliance upon the work of Dr McIntosh and her team, and checking out that work and making changes with a view to harnessing conflict is the first step in moving forward after separation and achieving the child-focus we talk so much about.

For more information or guidance around parenting post-separation, download our free parenting arrangements fact sheet or contact our Toowoomba divorce lawyers.