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December 10, 2014
Right to See Children: What You Need to Know

By Sue Holgate

The most common misconception in family law is that parents have a right to see their children.

They don’t.

1. Seeing Your Children is Not Your Legal Right

Family Law does not recognise any right of a parent to see a child. It does, however, recognise that a child has a right to have both parents and other significant adults in their lives.

The law believes that children benefit from having important people in their lives as role models. This works in your favour when arguing for spending time with your own children.

2. It’s the everyday parenting that counts

It’s tempting to want all the ‘fun’ moments with your children, but parenting is a 24/7 job and meaningful, joyful relationships with your children are built as much around the breakfast table and the before-bed routine as they are on entertaining day activities or trips away.

The law considers that a parent’s involvement should be in all aspects of their children’s lives, both the exciting and the humdrum. The Court therefore favours orders that provide for both weekday and weekend time with each parent.

3. The Court Considers Practicality

Again, all things being equal, a child should be able to spend equal time with both parents and have them equally involved in all the different aspects of their lives. The time the Court will order has to be reasonably practicable.

For example, travelling long distances to school may be neither practical nor in the best interests of a child. You should not assume you will get equal time with your children.

This arrangement only works in very limited circumstances. Parents must be on very good terms for a equal time arrangement to work. However, equal time is not the save as having an equal say in how your children should be raised.

4. The Court Considers the Child’s Best Interests

In the same way that you as a parent only want the best for your child, the Court’s decision needs to be something which is in the child’s best interests. For example, unacceptable risks of abuse or harm to the child would outweigh the benefit the child would have from the contact with a parent.

5. The Court Considers Relatives Other Than Parents

If, for no very good reason, grandparents or other relatives are being excluded from the child’s life, the Court recognises that it is of benefit for a child to have that person in their life and allows Applications to be made for orders to see children by grandparents and others.

6. The Courts May Withdraw a Parent From the Child’s Life as a Last Rest

As the law does not recognise a parent’s right to spend time with the children, Courts have the power to remove a parent from the child’s life if the child’s welfare requires it.

However, the underlying belief that it is good for children to have contact with both parents, means this is a measure of last resort.

For more information, contact Sue Holgate, Partner at LBH on sholgate@lbandh.com.au