Maintaining the Status Quo in Family Law

Another consideration to determine a child’s best interests is the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of their parents or any other person or relative with whom they have been living: Family Law Act 1975 (Cth) s 60CC(3)(d). This is often seen as the ‘status quo’ principle.

Often by the time a parenting dispute reaches a contested hearing, there is an established situation regarding where the child lives, who they live with and when they see the other parent. Under s 60CC(3)(d), the court effectively considers whether to disturb the child’s established pattern of residence and behaviour. Traditionally, the courts have been reluctant to disturb or cause significant change to a child’s living arrangements in order to provide certainty and consistency and avoid interfering with their development.

However, this can give rise to a situation where a parent retains the children following separation and draws out settlement in order to establish a pattern of residence that the court will be reluctant to disturb. The courts have warned against such ‘child snatching’ behaviour.

The significance of this consideration has been reduced by 2006 amendments to the Family Law Act, which added a presumption of equal shared parental responsibility. When the courts determine the child’s best interests, they must now consider an equal time arrangement, or one that provides for substantial and significant time with each parent, rather than leaning towards simply maintaining the status quo.

As such, if you have not had substantial and significant time at minimum with your children since separation, it is likely the courts would provide for you to spend more time with your children. While this is outweighed by practical considerations and issues of violence or abuse, the court aspires to ensure that you have a meaningful relationship with your child(ren) in accordance with their best interests.

If you have further questions, please contact James Frank at jfrank@franklaw.com.au. 

This is not legal advice.