Can I get an order that my children spend equal time with me and my ex?

In T & N [2001] FMCAfam 222 (T & N) Ryan FM considered an application seeking orders that the children live with each parent on an equal basis (i.e. equal time). In reaching his decision, Ryan FM identified the factual ingredients and circumstances that, if present, permit the court to make such an order. His Honour noted that where a party seeks an order for equal time, the factors a court will examine include (at [93]):

  • The parties’ capacity to communicate on matters relevant to the child’s welfare.
  • The physical proximity of the two households.
  • Whether the parties agree or disagree on matters relevant to the child’s day to day life. For example, methods of discipline, attitudes to homework, health and dental care, diet and sleeping pattern.
  • Where they disagree on these matters the likelihood that they would be able to reach a reasonable compromise.
  • Do the parties share similar ambitions for the child?
  • Whether or not the parties respect the other party as a parent.
  • The child’s wishes and the factors that influence those wishes.
  • Where siblings live.

The factors identified in T & N were recently cited in Reid & Molloy [2017] FamCA760 (Reid), another case involving an application for equal time. In Reid the court refused equal time due to the open hostility of the parties towards one another and the fact that they refused to communicate with one another in relation to matters concerning their children.

Ultimately, in deciding whether to order equal time, the court will have paramount regard to the best interests of the child.

Does family violence influence property settlement?

Ordinarily, marital conduct does not influence financial settlement. For example, if a husband is unfaithful to his wife, this has no bearing on the amount a court may award the husband in respect of his contribution to the marital property.

However, in some instances, family violence can impact upon the courts assessment of contributions.

The leading case is Kennon v Kennon (‘Kennon’), where it was said:

“…where there is a course of violent conduct by one party towards the other during the marriage which is demonstrated … to have made his or her contributions significantly more arduous than they ought to have been, that is a fact which a trial judge is entitled to take into account in assessing the parties’ respective contributions”

Simply put, where a party has been a victim of family violence their contribution to the property of the marriage will be assessed as greater than it would otherwise have been had the violence not occurred. Put another way, the contribution of a party may be assessed at say 50%, instead of 45%, because they are a victim of family violence and that violence made their contribution to the marriage more arduous.

It should be noted that it is relatively difficult, although not impossible, to prove a Kennon argument.