Australian family law focuses on the rights of children to have an ongoing relationship with both parents so that separating from your partner or spouse does not mean that you are separating from your child or children.
Although the terms ‘custody’, ‘residence’, ‘contact’ and ‘access’ are no longer used much by lawyers, the issues behind the jargon are still on the top of the list of concerns for separating couples, namely:
- Who will the child or children live with?
- How will they spend time with the other parent?
- How will both parents be kept in the loop regarding important decisions such as education and health?
The overriding principle when considering parenting arrangements is that the best interests of the child are paramount, and when determining matters relating to children, parents generally must try to resolve their differences through dispute resolution processes.
What is shared parental responsibility?
Shared responsibility means that both parents have legal rights and responsibilities towards the child. It does not mean that the child will spend half of their time with one parent and half with the other, but that each parent has an equal say in decisions relating to the child in areas of health, welfare and education. Even if the child lives with the other parent you may still have shared responsibility.
But doesn’t the law now say that children spend equal time with each parent?
No. The law ensures that the best interests of the children are served first. When considering what is in the children’s best interests, the court has to consider facilitating a meaningful relationship between the children and both of their parents and also protecting a child from harm.
If the court is to provide equal shared responsibility, then it will also consider whether equal time is in the best interests of the children and whether it is practical. A range of factors will be considered such as the ages of the children and their ability to cope with change, whether there are other siblings and the children’s relationship with those siblings, the parents’ respective work commitments, schooling and location. Rather than equal time, the court may order substantial and significant time be spent with the other parent, for example four nights per fortnight rather than seven.
A parenting plan is an agreement made between parents about the ongoing and future arrangements for children. Parenting plans are not legally enforceable however may be taken into account if one of the parties subsequently applies to the court for a parenting order to vary the plan.
A consent order is a legally binding agreement with respect to parenting arrangements and can also include terms regarding the division of property. Consent orders are made after agreement by the parties without the need to attend court, however they have the same force as an order made after a court hearing.
The parents, grandparent or other person concerned with the welfare of a child or children may be a party to a parenting order.
Going to Court
If your case does end up in court, a legally binding decision will be made through a hearing where the judge will decide what is in the child’s best interests.
You may need to attend family dispute resolution before applying for parenting orders. The accredited family dispute resolution practitioner will issue a certificate which must be filed with the court application and simply states that your differences were unable to be resolved. There are some situations where the requirement to attend family dispute resolution does not apply.
If the matter goes to court, there will be a range of factors to consider in determining the future care and responsibility for the children. In addition to the principles already outlined, the court may consider the extent to which a parent has or has not fulfilled his or her responsibility towards a child or embraced the opportunity to do so.
Why use a lawyer?
When it comes to parenting matters, it is important to understand your legal rights and responsibilities, which can be difficult during separation, when life becomes turbulent and emotional. We can guide you through this complex area and assist in negotiating a fair approach to arrangements for your children. If your partner is agreeable, arrangements can be formalised without proceeding to costly court action.
If your differences cannot be settled, then you may need to commence proceedings to have parenting orders issued by the Federal Circuit & Family Court of Australia. If this becomes necessary, we will use our competence, expertise, and familiarity with court processes to advocate on your behalf and obtain the best result possible.