In Australian family law, the first right of refusal in child custody means that if one parent cannot care for the child during their scheduled time, the other parent must be given the first opportunity to provide care before any third party — such as a babysitter or relative — is involved. It is a clause often included in parenting plans or court orders to ensure children spend time with a parent whenever possible. While not automatically applied, courts may endorse this arrangement when it supports the child’s best interests and encourages cooperation between parents.
What Is the First Right of Refusal in Child Custody?
The first right of refusal in child custody is a legal clause that gives one parent the priority opportunity to care for their child when the other parent is temporarily unavailable during their scheduled parenting time. In simple terms, if a parent cannot look after the child — due to work, travel, or illness — they must first offer the other parent the chance to provide care before turning to any third party such as a babysitter, friend, or relative.
This clause is not automatically applied under Australian family law but can be included in parenting plans or court-ordered arrangements. Its main purpose is to promote consistent parental involvement and reduce the child’s reliance on non-parental caregivers. By ensuring that the child spends time with a parent whenever possible, the clause supports the child’s best interests — a central principle under the Family Law Act 1975 (Cth).
In practice, the first right of refusal operates as a cooperative arrangement between parents. It encourages open communication, mutual respect, and stability in the child’s daily life while maintaining flexibility for each parent’s personal and professional obligations.
Why Is the First Right of Refusal Used in Custody Agreements?
The first right of refusal is used in custody agreements because it helps ensure that a child spends time with a parent whenever possible, rather than with a third party such as a babysitter or relative. This clause promotes stronger parental involvement, supports emotional stability for the child, and aligns with the best interests of the child — a guiding principle under the Family Law Act 1975 (Cth).
Legally, this provision also reduces misunderstandings and disputes between parents. By clearly stating that the available parent must be offered the first opportunity to care for the child, it eliminates confusion over who should assume responsibility during temporary absences. This clarity can prevent unnecessary court applications and promote cooperation in co-parenting.
From a practical perspective, the clause reflects the Court’s view that children benefit most when both parents play active, ongoing roles in their lives. It reinforces shared parental responsibility, encourages communication, and limits the use of external childcare — all of which contribute to a more stable and predictable environment for the child.
If you’re drafting a parenting plan, consulting with an experienced solicitor can help tailor this clause to your family’s unique needs. Working with a professional when finding a good family lawyer ensures the agreement is legally sound and enforceable.
When Does the First Right of Refusal Apply?
The first right of refusal applies whenever a parent cannot personally care for the child during their scheduled parenting time and intends to leave the child in someone else’s care. This situation may include work obligations, illness, travel, or any temporary unavailability that prevents direct supervision.
Under Australian family law, this clause is not automatically triggered — it must be expressly included in a parenting plan or court-ordered custody arrangement. Once in place, it legally requires the unavailable parent to contact the other parent first and offer them the opportunity to care for the child before seeking help from grandparents, babysitters, or friends.
The exact conditions for when and how this right applies are usually defined in the custody agreement itself. Some agreements limit it to overnight absences, while others extend it to shorter periods such as a few hours. Courts generally support arrangements that are practical, flexible, and focused on the child’s best interests, ensuring that both parents have fair opportunities to maintain meaningful relationships with their child.
Examples of First Right of Refusal Clauses in Parenting Plans
Common clause formulations include:
- “If Parent A is unavailable to care for the child for more than 6 consecutive hours, Parent A must offer Parent B the opportunity to care for the child before engaging in alternative care.”
- “If either parent requires childcare during their parenting time, they shall first contact the other parent and allow a reasonable opportunity to accept or decline before arranging third-party supervision.”
Well-constructed clauses specify notice requirements, response times, and methods of communication, reducing scope for later conflict. Legal practitioners typically tailor these to the child’s age, the parents’ working patterns, and the distance between residences.
Enforcing the First Right of Refusal
Where a clause forms part of a parenting order, compliance is legally binding. Repeated or deliberate failure to offer the opportunity may constitute a breach under section 70NAC of the Family Law Act 1975 (Cth).
Parents seeking enforcement can apply to the Federal Circuit and Family Court of Australia (FCFCOA) for remedies such as:
- Contravention proceedings if the breach is deliberate;
- Clarification or variation of existing orders to reinforce expectations; or
- Compensatory time if one parent’s breach results in lost contact.
If the clause appears only in a parenting plan (a non-binding agreement), it is not directly enforceable but can be used as persuasive evidence in subsequent proceedings to demonstrate intent and pattern of care.
First Right of Refusal vs Regular Childcare Arrangements
It is important to distinguish this clause from standard childcare.
- First right of refusal: legally defined mechanism granting the other parent temporary care priority when one is unavailable.
- Regular childcare: an ongoing arrangement mutually agreed upon by parents (e.g., daycare, nanny, school programs).
The former concerns parental cooperation during scheduled custody; the latter is an agreed element of the child’s broader routine. Both can co-exist if carefully structured in the parenting plan.
Exceptions to the First Right of Refusal
Courts recognise that the right may not apply in every scenario. Common exceptions include:
- Emergencies where immediate supervision is needed;
- Short absences below the agreed threshold;
- Special events such as family weddings, where temporary third-party care is reasonable; or
- Situations involving family violence or safety risks, where contact is not appropriate.
These exceptions must be explicitly defined to ensure the clause remains workable and safe.
FAQs
Before addressing the most common questions, it is important to remember that the first right of refusal is discretionary, not automatic. Its operation depends on clear wording, good faith, and enforceable structure within the parenting agreement.
What does the first right of refusal mean for co-parents?
It allows one parent the opportunity to care for the child whenever the other parent cannot, strengthening shared parental involvement without changing custody itself.
Why is the first right of refusal used in child custody agreements?
It supports consistent parental care and reduces reliance on external carers, aligning with the principle of promoting the child’s best interests under the Family Law Act.
When does the first right of refusal apply in child custody?
It applies when a parent is unavailable during their parenting time for reasons such as work, illness, or travel, provided the absence exceeds the agreed duration.
How is the first right of refusal enforced?
Enforcement depends on whether it is included in a parenting order or plan. A binding court order allows legal recourse through the FCFCOA for breaches.
What are the consequences of violating a first right of refusal clause?
Consequences can include warnings, compensatory time, or variation of parenting orders, depending on the severity and intent of the breach.
What is the typical notice period for exercising the right?
Agreements usually require advance notice — typically between 4 and 24 hours — though this varies based on family logistics and distance between households.
Conclusion
The first right of refusal in child custody is an evolving feature of Australian parenting arrangements designed to uphold the child’s best interests through cooperative care. It gives parents a fair and structured way to share responsibility while preserving stability and emotional continuity for the child.
Parents considering this clause should seek professional guidance to ensure it is clearly drafted, legally enforceable, and practical in everyday life.
For tailored advice or help drafting compliant parenting clauses, contact LegalFinda — connecting parents with experienced family lawyers who understand how to protect your child’s wellbeing within the bounds of Australian family law.
