Child Custody

Most parents usually speak about sole custody, joint custody, access and visitation. These terms were used pre-2007, but are not used in family law anymore. Though somewhat cumbersome in sentences, family law now uses the terms lives with and spends time with in relation to children’s living arrangements.

Philosophically, the change in terms shows a shift in perspective – from the child being an object that a parent could have custody or possession of, to the child’s experience being the central consideration.

Rights

You won’t find a single reference to parent’s rights, father’s rights or mother’s rights in the Family Law Act. Instead, it is children who have rights. Parents have responsibilities and obligations. Under the Family Law Act:

  • Your child has the right to know and be cared for by both parents, regardless of whether you are living together or not.
  • Your child has the right to spend regular time and have regular communication with both parents.
  • Your child has the right to enjoy his or her culture.

Decision-making

There is a presumption that both parents have equal shared parental responsibility for decisions concerning the major long term issues for their children, including where the children live, where they go to school, their religious upbringing, medical treatment, and changes to their name. In the absence of any domestic violence or child abuse, this presumption will apply.

This means that decisions about major long term issues are to be made jointly by mum and dad in consultation with each other – dad can’t choose a school and announce to mum that this is how it’s going to be; mum can’t change the child’s last name without dad’s agreement; neither parent can move the children far away from where the other parent lives.

Living arrangements

Equal shared parental responsibility does not mean equal time. There is no legal presumption that children are better off living with mum than with dad, and the child’s best interests are always the paramount consideration.

The shared parenting laws acknowledge that it is usually in a child’s best interests for both parents to having a meaningful involvement in the child’s lives. This meaningful involvement is usually promoted and maintained by regular time and communication.

If the presumption for equal shared parental responsibility applies, then the court must consider whether it is in your child’s best interests and is reasonably practicable to spend equal time with each parent. If the answer to either these questions is “no”, the court must then consider if it is in your child’s best interests and is reasonably practicable to spend substantial and significant time with each parent.

Substantial and significant time is less than equal time, but not much less. It includes time during the week, on weekends, in school holidays and on special occasions.

Of course, every family is different, and different arrangements may be considered to be in your children’s best interests based on your particular circumstances.

You have a number of options for formalising parenting arrangements for your children:

  • Nothing in writing. Parents who have low conflict and who can communicate together effectively often do not need to have anything in writing. This option usually works for parents who are able to talk with each other and resolve their day-to-day problems cooperatively.
  • A Parenting Plan is a written document that is signed by both parents. It usually describes where the children will live, how they will spend time and communicate with each parent, where the children will go to school, and details how decisions about the children will be made and how information about the children will be shared. This option usually works well for parents who are experiencing low/some conflict and wish to have something in writing to give some certainty. A Parenting Plan is not legally binding. Either parent can choose not to follow the Parenting Plan and the other parent cannot enforce it.
  • Consent Orders are made by a Registrar of the Family Court ‘on the papers’, meaning that you don’t have to go to court in person. This option is often helpful for parents who are experiencing moderate conflict and who need the certainty of having legally binding and enforceable arrangements. You will need to complete an Application for Consent Orders, which details both parent’s information as well as the children’s information. You will also need to complete Minutes of Consent, which contain the formal parenting orders you are asking the court to make. Neither person needs to have a lawyer, but it is typical for at least one person to have a lawyer as the Minutes of Consent can be difficult for a non-lawyer to write correctly. The greater the level of conflict between the parents, the more specific the Minutes of Consent will need to be, to reduce the chance of a future dispute about the children’s arrangements.
  • Initiating Application in the Federal Circuit Court. You are essentially asking a judge to decide your case, based on the law. This option is usually seen where there is high conflict between the parents, where parents are simply unable to agree or where there is an urgent need for court intervention. This can be a lengthy and costly process. Because of the high costs involved, not only financially but also emotionally, this is typically seen as a last resort when there is no other feasible option.
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