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What is the right of first refusal in family law?

By August 18, 2021February 23rd, 2024No Comments

It’s something you see more often in the US and the UK, while it’s only rarely used in Australia. What exactly is the ‘right of first refusal’ when it comes to agreements between parents about parenting arrangements?

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So what is the ‘right of first refusal’?

Despite it being fairly uncommon in Australian parenting agreements, the right of first refusal is an often helpful clause that helps parents navigate how to allocate parenting time.

Normally, parents who find they are unable to look after a child during their allocated parenting time are not required to turn the child over to the other parent. Parents are free to make alternative arrangements and find someone else to watch their children, whether that is a family member, friend, or a paid babysitter.

However, parenting agreements are able to include a provision that specifies that one parent has to first offer the other parent the chance to care the child while the first parent is unavailable, before other arrangements with third parties are made. Essentially, it means that parents agree in advance that if one parent is unavailable during their parenting time, the parent must offer the time to the other parent first.

The clause typically reads something like this:

“That when the parent with whom the child is spending time is unavailable to care for the child, that parent shall offer the first opportunity to care for the child to the other parent, even though it is during a time that parent is not scheduled to have parenting time.”

Further details often specify that each parent must provide notice to the other parent (for example at least 72 hours in advance of the time the parent will not be available). The provision might also specify that the other parent has 24 hours to provide confirmation of whether or not they can watch the child in the particular timeframe. The details may also include a minimum time period before the parent has to offer the first opportunity to the other parent. For example, the parents may agree that this provision does not apply to situations where the parent is going out for dinner for a couple of hours, but it would apply to longer periods of time, or overnight time.

When might the clause be needed?

Because of the unpredictability of life, sometimes a time will come when a parent can’t take care of a child in the time specified for them to have parenting time. There are countless, unexpected reasons why parents might be unable to fulfil their parenting duties during their scheduled time. And then there are scenarios such as if a parent has to unexpectedly travel for work or is on-call for work. Or, a parent may have periodic requirements (such as military duty) impinging on child caring time.

Pros

Sometimes parents work out parenting arrangements informally and with a large amount of flexibility. But often, separation is less than perfectly amicable and parents can easily get into disputes over the minutae of arrangements. Parenting agreements lay everything out in black and white, preventing the need for endless disputes.

Adding the right of first refusal clause to a parenting agreement can be an efficient tool for helping parents manage parenting issues with more clarity. It can be especially useful early on in a separation or divorce when conflict and tensions are usually highest. The added clarity can help decrease conflict and establish acceptable parenting rules early on.

Used correctly, the right of first refusal provision in a parenting agreement can help parents achieve compromise and encouraging flexibility between them. Further, it maximises time between parents and their children, rather than deferring the caring to third parties when one parent was in fact available. This can also mean savings on childcare and babysitting costs.

Cons

For the clause to operate effectively, parents need to be able to communicate well. The parents will need to communicate openly and civilly about their schedules, plans and the necessary adjustments that need to be made to a parenting schedule. If there is so much conflict between parents that communication is difficult, then provision for this may simply not be workable. When each request for changed arrangements is only going to open up a new battleground, it’s clearly less than ideal. Paradoxically, then, while the clause can help reduce conflict through clarifying arrangements, it also won’t work smoothly if there is too much existing conflict between parents.

Similarly, the provision can cause over-involvement by parents in the other parent’s life. Aside from all the communication about arrangements, there will also be extra changeovers involved. Basically, parents will need to be in contact with and see their ex more than they would usually like as they move forward with their lives.

It can sometimes be impractical. For example, if a parent needs to quickly change plans, it can be much easier to use an available caregiver rather than connect with the other parent to make arrangements.

Also, it may not be ideal for the child, with all the extra juggling back and forth potentially being quite disruptive, rather than allowing the child to be settled in their home.

It might also be misused. A parent might take advantage of the provision simply on principle. That is, taking the child even if they don’t actually want to or can’t actually care for them adequately (but not admitting this). Sometimes, other caregivers will be able to provide better care, but a stubborn parent with a right of first refusal digs their heels in because it’s their “right”.

And some parents might see this as a great opportunity to maintain unwelcome involvement in their ex’s life.

Triggering the right of first refusal

When does the clause usually come into effect? The clause wording will vary depending on a particular case, and is crafted to work with both parents’ schedules. Sometimes parents might want the provision to come into effect after a very short time, other times when there is a longer absence anticipated. For example, a trigger may be if a parent can’t care for the child for a period of two or three hours, while other parents specify it must be four hours or more, or even lengthier absences like overnights. Or, parents might agree the clause only applies to particular occasions, certain days, or only for emergencies.

Usually, it’s not ideal to have the trigger set to very short time periods (like two hours) as this can simply create the need for too much ongoing involvement between separated parents and disruption for children.

Getting the clause approved

If you have the agreement of the other parent, you can include an order for first right of refusal in consent orders. Parents are always able to agree to terms to be included in parenting consent orders. But a judge will still need to approve the ultimate agreement to ensure it is fair and in the children’s best interests. Similarly, if you are seeking a right of first refusal and your co-parent objects, it will also be down to the courts to decide what is in the child’s best interests and whether or not to include the provision.

Ultimately, the clause will not be suitable if you experience a lot of conflict with your co-parent. The need to communicate with your ex more can just create more opportunities to get in conflict.

If you would like to discuss whether a right of first refusal might be useful in your parenting matter, please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400.

Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Family Law.

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