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.