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Child Custody – The Basics

Child Custody – The Basics

The Australian legislature made significant changes to the way the courts approach custody issues in 2006. This legislation indicated a strong preference for parents to reach an agreement without resorting to litigation, and also for parents to enjoy shared parental responsibility.

Consistent with the legislature’s aims, you are required to attend family dispute resolution to reach an agreement before using the courts to determine your custody issues. After completion of family dispute resolution, you will be issued a certificate that must be filed with your application to the court for a parenting order. The court will not entertain an application without a certificate except for extreme circumstances (ie, threat of violence or abuse).

There are many dispute resolution methods you may use in order to reach an amicable agreement regarding custody. You may use the government sanctioned Family Relationship Centres and Family Advice Line, or you could use other methods such as collaborative law or arbitration.

Once you have completed the required dispute resolution process, you may apply for a parenting order. This order will address whom the child should live with, how much time the child spends with each parent, and the nature and type of communication the child should have with each parent among other issues. These orders are fully enforceable and failure to comply with a parenting order could have serious repercussions.

You may also reach an agreement with regard to parenting through something known as a parenting plan. A parenting plan is an informal agreement between parents that addresses similar issues that a parenting order would address. The major difference between a parenting plan and a parenting order is that the former is not enforceable like a court order and therefore the breaching party is not subject to the same sanctions.

Should you be unable to address your parenting issues through dispute resolution services or a parenting plan, you may litigate your case in court. There are certain procedural rules with regard to parenting proceedings that exist to make this process as smooth as possible for the child or children involved.

The main thing to keep in mind with regard to parenting is that all parties involved should be acting with the best interest of the child at heart. The court will apply this standard if asked to address parenting issues and it should also be the main consideration for parents when trying to settle their dispute.

Contact our team of specialist solicitors and family dispute attorneys today to to discuss how we can help you with child custody. Call 1300 635 529 or email [email protected] to arrange a free telephone consultation with a parental rights lawyer now.

Child Custody – The Details

By its very nature, separation and divorce is difficult, emotionally draining, and have a major impact on your life. However, if you have children, this emotional toll is only amplified. Your children may experience a lot of pain as you and your spouse or partner separate and they adjust to a new lifestyle of splitting their time with you and sleeping in two different homes. Because divorce is so hard for children to cope with, the Australian legislature has placed an emphasis on shared parenting and ensuring that both parents continue to play an active role in the lives of their children after separation.

2006 Changes

The largest contributor to this concept of shared parental responsibility came in 2006 in the form of an amendment to the Family Law Act 1975. When passed, this amendment brought about the most significant change to family law in more than thirty years. The main objective of the amendment was to both support and promote the practice of shared parenting and urge parents to reach an agreement with regard to parenting arrangements on their own, without the interference of the courts.

An explanatory memorandum that accompanied the amendment further expressed that the changes were intended to “represent a generational change in family law and aim to bring about a cultural shift in how family separation is managed: away from litigation and towards co-operative parenting.” Through this amendment, Australia took a significant step towards making divorce easier on children.

Not only did the amendment express a desire for parents to reach an agreement on their own, but it also stressed the importance of both parents continuing to take an active role in the parenting of the child. The amendment expresses a desire for parents to jointly share duties and responsibilities, and also for children to be cared for and spend time with both parents.

While this article is designed to give you an in-depth look at how parenting arrangements work, through litigation or otherwise, bear in mind that often the most ideal way to settle a difference is to reach an agreement without involving the court. Children benefit from having both parents involved in their lives, so the best thing you can do for your child is to reach an agreement where each parent has meaningful involvement, and refrain from having your parenting issues heard in court.

Shared Parental Responsibility

The term “parental responsibility” is defined in the Family Law Act as: “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.” This has been understood to mean that parental responsibility encompasses living arrangements, medical treatment, education, religious upbringing, protection from harm, and the responsibility to keep the child safe among other things.

You may be wondering, what exactly did the legislature mean when it expressed a preference for shared parental responsibility? Does that mean the child should spend equal time with each parent? Should each parent spend equal money on the child? Should each be allowed to make decisions about the child’s religion, schooling, and extra-curricular activities? Generally speaking, the answer is yes.

Australia’s preference for shared parental responsibility means that both parents should have involvement in the child’s life, make decisions with regard to the child’s upbringing, and contribute to the general welfare and needs of the child. The courts will not allocate or assign responsibilities unless disputes arise that the parents are unable to resolve. Furthermore, should a court order be silent with regard to parental responsibility, both parents are to retain the responsibility.

As you can see, Australia has a strong preference for parents to share in the upbringing of the child, despite separation or divorce, and the courts are reluctant to make decisions regarding specific parental responsibilities. The Amendment discussed above in fact created a rebuttable presumption that it is in the best interest of the child to have both parents share equally in their responsibility, care, and upbringing.

It should not come as a surprise that very rarely do the courts take action to limit the parental responsibility of a parent, it takes extreme circumstances affecting the welfare of the child for the court to intervene and do such. Specifically, the rebuttable presumption discussed above is only abandoned where there is a threat of abuse, violence, or if allowing the parent to have control over the child is contrary to the child’s best interests.

Equal Time

Sometimes the concept of shared parental responsibility can be difficult when it comes to how much time the child spends with each parent. Equal time is often harder to organize than equal responsibility with regard to general decision-making, education, and religion. Allowing each parent to have equal time can raise logistical issues, which the court has addressed.

While there is a rebuttable presumption that equal shared parental responsibility is in the best interest of the child, there is no presumption with regard to the amount of time each parent has with the child. Before the court will issue an order allowing for equal time to be shared by the parents, it must first determine that such an arrangement is in the child’s best interest and reasonably practical.

There are advantages and disadvantages to allowing your child to spend equal time with you and your former spouse or partner. Each child is different and will respond differently to a divorce, and should you need a court order determining custody, the court will consider both the child’s interests as well as whether splitting time equally is reasonably practical. When determining whether equal time is reasonably practical the court will consider the following factors:

• how far apart the parents live to form each other
• the parent’s current and future capacity to implement an arrangement for the child to spend equal time, or substantial and significant time, with each of the parents
• the parent’s current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind
• the impact that an arrangement of that kind would have on the child
• such other matters as the court consider relevant

As you may have guessed, courts rarely grant parenting orders allowing for equal time. While the best interest of the child is paramount to the court’s decision, it also considers the practicability of the order, and more often than not equal time is not found to be reasonably practicable.

Day-to-Day Decisions

Generally speaking, the parent who has the child in their care is responsible for the day-to-day decisions – like what the child eats, wears, when the child goes to bed, and what activities the child does. These day-to-day decisions can be made unilaterally, without consulting the other parent. However, the big decisions, otherwise known as “major long-term issues” are to be decided by both parents. The Family Law Act has enumerated certain issues that fall into the major long-term category, they include but are not limited to: education, religion/cultural upbringing, health, name, and living arrangements.

What happens first?

We have discussed how Australia’s preference for shared parental responsibility and for settling matters without litigation, so you may be wondering how the process works, and what happens first? This article will discuss the non-litigious ways to reach an agreement before discussing how parenting litigation works.

Step one to reaching a parenting agreement is to participate in something called family dispute resolution (otherwise known as alternative dispute resolution). All courts require compliance with primary dispute resolution, and you must obtain a certificate from a family dispute resolution practitioner prior to filing for a parenting order. The purpose of required family dispute resolution is to encourage early and full disclosure of relevant information, and allow parties to engage in a process that not only avoids legal action but also minimizes cost.

While participating in family dispute resolution, the focus of the parties is to be upon the best interest of the child, and parties should be open to negotiation, arbitration, and counseling.

Unless you can show good reason for not having followed the family dispute resolution requirement, non-compliance can result in serious cost consequences. There are only several exceptions to this requirement that excuse you from having to file a certificate from a family dispute resolution practitioner. The major exception is where the court finds that there has been or is a risk of abuse or family violence of the child. While there are several other exceptions, keep in mind that should you fail to comply with this requirement, it could cost you.

Family Relationship Centers and Family Advice Line

As part of the push to get families to reach agreements with regard to parenting issues without resorting to litigation, the government introduced both Family Relationship Centers and a Family Relationship Advice Line. Both programs are government sanctioned and designed to encourage parties to resolve disputes and enter into parenting plans.

The purpose of the Family Relationship Centers (FRCs) is to allow parents to reach workable arrangements for their children with the help of FRC staff. The staff members are not only trained in how to give advice concerning disputes but also are trained in identifying issues of family violence and abuse. Furthermore, while the staff does not administer legal advice, it has the ability to place parties in communication with Legal Aid and private practitioners to obtain the legal advice they need.

The Family Advice Line is available from 8 am to 8 pm Monday through Friday, 10 am to 4 pm on Saturdays and can be reached at 1800 050 321. Not only is this service available to the parents, but also is available for grandparents, stepparents, children and friends.

The purpose of the Family Advice Line is to provide information about the family law system, separation, how to maintain relationships, and the impact of conflict on children among other things. This service is free, and may remain anonymous should you choose to keep your identity unknown.

Other Methods of Dispute Resolution

Mediation is another type of dispute resolution that doesn’t involve the courts. The benefits to choosing mediation are that it can be less expensive than litigation, your case can be heard sooner than it could in Family Court, and the parties have greater control over the process.

Collaborative law is another option for dispute resolution and allows for parties and lawyers to meet in four-way meetings. This allows the parties to stay directly involved in the communication and negotiations. A major distinction with collaborative law is that the parties and lawyers agree in advance not to go to court.

Parenting Orders

After you have attended mandatory family dispute resolution and come to an agreement, you may apply to the court for a parenting order. Any person concerned with the child’s welfare may submit an application for a parenting order however in most cases, it is a parent, the child, or a grandparent who is seeking such an order.

With regard to parenting orders, the emphasis is on the best interest of the child. The court considers this to be the “paramount principle.” The primary considerations viewed by the court are allowing the child to have a meaningful relationship with both parents and also to protect the child from violence, abuse, and/or neglect. The court will also give consideration to a myriad of other factors, including the events that have occurred since separation.

After considering all relevant factors, the court can issue a parenting order that discusses parental responsibility, with whom the child will live, how much time the child spends with each parent, and how much communication the child has with each parent.

If you would like to modify a parenting order after it has been issued, you should first seek the assistance of a lawyer. Only if you are still unable to reach an agreement should you apply to the court for further help. At this point, the court can order both parents to attend a parenting program, or it can consider varying the order.

Non-Compliance and Parenting Orders

You should avoid breaching a parenting order at all costs; the court takes breaches of its orders very seriously and you could even potentially face goal time upon breach.

Australia has adopted a three-stage approach designed to both educate parents as well as impose sanctions when noncompliance occurs. Stage one addresses educating the parents about the nature and effect of parenting orders. Stage two is invoked upon the first breach of a parenting order, and requires the breaching party to attend an approved parenting course. When there are subsequent breaches, stage three permits the court to impose serious sanctions such as fines or imprisonment.

Parenting Plan

A parenting plan is a written document discussing any agreements reached between parties with regard to matters affecting their children. They differ from parenting orders in that they do not require the court’s involvement; they are simply informal agreements reached by the parties.

A parenting plan should detail the responsibilities and rights of both parents and its aim should be to create an arrangement in the best interest of the child. A parenting plan should include a breakdown of time that each parent is to spend with the child, discuss where the child will spend holidays, payments for the child’s expenses, and any other aspect of the care, welfare or development of the child.

The court will refuse to grant a divorce order unless it is satisfied that proper parenting arrangements are in place, and if the parties are unable to provide a plan the court will do it for them.

While it is permissible (and usually recommended) that parents agree to a parenting plan on their own, should this not be an option in your situation then you can resort to the other methods of dispute resolution we have discussed.

It is possible to have both a valid parenting plan and a valid parenting order. Typically, this situation arises when the order discusses significant topics (such as where the child will live) while the parenting plan manages the more intricate issues (for instance, how the child should be disciplined).

A major distinction between a parenting plan and a parenting order is that a parenting plan is not enforceable; it cannot be registered by the court and parties in breach of a parenting plan are not subject to the same sanctions as parties breaching a parenting order. For further discussion addressing the differences between a parenting plan and a parenting order, please see our FAQ that tackles this issue.

Independent Children’s Lawyer

In some cases, it is necessary to appoint an independent child’s lawyer (ICL) to represent the child’s interest. Parties can request this, or the court may appoint an ICL on its own initiative. In determining whether this appointment is necessary the court will consider a myriad of factors, including but not limited to: allegations of child abuse, a conflict between parties, issues of cultural or religious differences, sexual preferences of the parties, mental illness, and the proposed separation of siblings.

The role of the ICL is not to be the child’s legal representative, but rather to act as an “honest broker” throughout the legal proceedings. An ICL is charged with the task of forming an independent view of the evidence and acting in the best interest of the child. The presence of an ICL should minimize the trauma to the child and facilitate an agreed resolution of matters in the best interest of the child.

Any information that a child shares with an ICL is deemed to be confidential unless the ICL considers disclosure to be in the best interest of the child.

What the Child Wants 

Undoubtedly a child will form an opinion about where they want to live and whom they want to live with throughout your separation and divorce. A frequent question that arises is whether the child’s wishes are considered when determining custody arrangements.

A child is not required to disclose their wishes, however the court is required to consider their views should they choose to express them. The court will balance the child’s view with their age and degree of maturity before determining how much credibility to give the child.

Court Proceedings

It is clear that the preference in Australia is for parties to reach agreements with regard to parenting and custody issues without involving the court. However, this is not ideal in every situation. Some separations and divorces are particularly contentious, some involve issues of violence, and other times the parties simply can’t reach an agreement using dispute resolution. Should that happen, there are certain rules in place to protect children if their parents end up litigating child-related issues

The court takes on several principle roles when it comes to child-related proceedings. First, during the proceedings, the court is to consider both the needs of the child and the impact that the proceedings may have on the child. Essentially, the court’s role is to minimize any trauma experienced by the child throughout the proceedings. The court is charged with actively directing, controlling and managing the conduct of the proceedings. Additionally, the court is to conduct proceedings in a manner that will protect the child from violence or abuse, promote cooperative child-focused parenting, and reduce delays, formality, and legal technicality.

Additionally, there are certain logistical things the court can do to help protect the child. For instance, the court is required to address as many irrelevant issues as possible on one occasion, which shortens the overall proceedings and lessens the impact on the child. Also, the court may schedule hearing dates close to each other so that the child will not be impacted by lengthy times between hearing dates. The court can also limit the number of witnesses used, and the technology used, and again, encourage the parties to use dispute resolution services.

Another question that often arises when parties must litigate matters concerns the evidence that may be shown. The most common types of evidence are as follows:

• application and affidavit of the parties
• expert affidavit
• oral evidence (testimony)
• testimony/reports from an independent children’s lawyer
• family consultant’s report

While litigation is certainly an option for parties dealing with custody issues, it is clear that the preference is for parents to reach an amicable agreement by way of a parenting agreement or a parenting order achieved through dispute resolution.

Who gets the children?

Hi, I’m Vanessa Mathews from Mathews Family Law & Mediation Specialists. Today’s topic is children and parental responsibility. I’m going to provide you with some of the basic information you should have before you begin discussing child custody with your spouse or partner.

I also suggest you read the information provided on our website at mathewsfamilylaw.com.au and I highly recommend that you speak with a lawyer before signing anything or filing any court documents.

Often I find that people forget the most important part of their parenting dispute, which is of course, their children. Unless one parent is a physical or emotional danger to the children, most children are better off in the long run maintaining a close and meaningful relationship with both parents. The less fighting between you, the better it is for your children.

Before you begin discussing the children with your partner or spouse, there are a few important terms to remember. First, there’s equal shared parental responsibility. Australian law changed a few years ago and today, parents are generally given equal shared parental responsibility for their children. This doesn’t necessarily mean that the children live in both homes equally, but rather that both parents have the same rights in making major decisions for the children.

The other important term is custody which means who the children live with. There is primary custody where the children live more with one parent than the other, then there’s shared care, where the parents have more shared time with the children. You and your partner can also come up with your own parenting agreement, which is an arrangement for taking care of your children.

A good parenting agreement should be as detailed as possible. It should include where the children will be on each days of the week and during the school holidays, how major decisions for the children will be made, such as the religion they have to be raised in and the schools they will attend. The agreement should also look towards the future. For example, by anticipating the changes from primarily to secondary school, extra- curricular activities and healthy expenses such as orthodontics.

A good parenting agreement will also have a way for resolving disputes. So, when there is a disagreement, there is a clear way to solve the problem. For example, some couples require that they first sit down and talk to each other to come to a compromise. Others might decide that it’s best to turn to a mediator or family dispute resolution practitioner.

You can submit this agreement to the court for approval, which makes it binding on both sides this is called a consent parenting order or you can opt for a parenting plan, which is not binding on either of you. If you can not agree between yourselves, you can bring the dispute to the court and a judge will decide for you.

We believe it’s always better for parents, and not the judge, to decide about children as it is you who knows what’s best for them. The co-parenting calendar on the Mathews Family Law & Mediation Specialists website will help you and your spouse or partner to plan your children’s living arrangements. I’m Vanessa Mathews at Mathews Family Law & Mediation Specialists.

Parenting Orders

An application for a Parenting Order can be made by the child’s parents, the child, a grandparent or any other person concerned with the child’s welfare.

The Court will only hear child related proceedings if an applicant has attended family dispute resolution (perhaps at a Family Relationships Centre) and obtained a certificate. A certificate is not required where:

• the Application is for Consent Orders,
• the matter is urgent or
• child abuse or family violence is involved.

When dealing with an application for a Parenting Order, the court should have as its paramount consideration the child’s best interests.

A child’s views can be taken into account via a ‘family report’ prepared by a family consultant or an independent children’s lawyer. Sometimes a judge may interview a child, but this is unusual.

A Court can make Orders about:

• parental responsibility;
• which parent a child lives with;
• wow much time a child spends with the other parent; and
• how a child communicates with a parent.

When a magistrate makes an intervention order to protect a child, they must check if there are Parenting Orders in place. A magistrate can decide to suspend, vary (change) or discharge (cancel) a Parenting Order if certain conditions are met.

The relationship between intervention orders and parenting orders is complex. An intervention order does not stop the respondent applying for a parenting order to see the children. Get legal advice.

Can child care arrangements specified in a Court Order be varied?

There is a legal obligation to take all reasonable steps necessary to put the Parenting Orders into effect. The children should be positively encouraged to comply with the Orders.

What happens if Court Orders become unworkable?

If Court Orders are no longer workable, parents should try to resolve matters with the assistance of a lawyer and vary the Orders. If agreement can’t be reached, then application is made to the Court and the Court may order that both parents attend a parenting program or consider varying the Orders.

What happens if the Court Orders are breached?

The Court takes breaches of its Orders very seriously. Depending on the circumstances, the non-complying parent can be referred to a parenting program, fined, made to provide compensatory (or ‘catch up’ time) with the child and parent, or even face gaol.

Reasonable excuse

When a breach occurs, the non-complying parent may show a reasonable excuse. For example, a very sick child (supported by proper medical evidence) may be considered a legitimate reason for a parent breaching an Order.

Less serious contravention with no reasonable excuse

If there is no reasonable excuse for a less serious contravention the Court can:

• make Orders for the person committing the contravention to take part in a post-separation parenting program,
• make further Parenting Orders that compensate a person for the time the other person did not spend with the child as a result of the contravention,
• order the person who committed the contravention to enter into a bond and
• order the person contravening the order to pay costs.

More serious contravention with no reasonable excuse

For more serious contraventions where no reasonable excuse has been established the Court can make Orders for fines or imprisonment in relation to the parent committing the contravention.

Further information is available at: familylawcourts.gov.au

Parenting Plans

A Parenting Plan must deal with one or more of the following matters:

• the person or persons with whom the child is to live,
• the time that the child is to spend with another person or other persons,
• the allocation of parental responsibilities for a child,
• how parents consult about decisions to be made,
• communication the child is to have with others,
• maintenance of a child,
• how to resolve disputes about the plan,
• how to change the plan to for changing needs of the child parents and
• any aspect of the care, welfare or development of the child or any other aspects of parental responsibility for a child.

A Parenting Order may be varied by a later Parenting Plan, but Parenting Plans cannot be enforced as an Order. When an application is made to a Court for Orders in relation to a child, the most recent Parenting Plan will be considered, if it is in the child’s best interest.

A parenting plan will be unworkable where:

• both Consent Orders and the plan deal with the same subject matter.
• the plan is vague and uncertain,
• the plan is silent on important issues or
• the plan deals with issues that cannot be part of a parenting plan such as Child Support or spouse maintenance.

Why Every Family Should have One

Divorcing parents are often so busy with their own anger or arguing over who gets what to remember their most important shared property their children.   By law, parents have a shared responsibility, which means that both parents must take care of their children’s financial, emotional and physical needs.  Family law in Australia encourages parents to work together on these issues and encourages families to create a “parenting plan” before divorce or the termination of a de facto relationship.

The purpose of a parenting plan is to detail the responsibilities and rights of each parent in order to do what’s best for the children.  A good parenting plan includes a day-to-day schedule for the children,  a break-down of time that each parent is to spend with the child for every day of the year, including all civil, religious and school holidays, payments for all of the various expenses, including medical, dental and after school activities, and how the parents will settle future disagreements. The court cannot grant a divorce order until it is satisfied that proper parenting arrangements are in place.  If parents are unable to create a parenting plan on their own, the court will do it for them.

The best parenting plan is one made by the parents themselves. Some parents are able to do this on their own, or with the help of a mediator or another trained professional in other methods of Family Dispute Resolution.

While a parenting plan is an agreement between the parents and cannot be enforced by the courts, there are legal remedies if a parent does not follow the plan.  The other parent may turn to the court and the court may make new orders based on the original parenting plan.

Below are five reasons to make a parent plan.

Everybody knows where they stand

A good parenting plan will include everything from which nights the children sleep at Dad’s house to what religion they will be brought up in to how the parents will settle disagreements between themselves. This limits places for disagreement and fighting between parents and gives them the tools to resolve disputes when they arise.  There’s no disagreement about where the kids will go for Christmas because it’s written in the plan.

More importantly, the children have stability. No matter what the arrangement, divorce or separation is hard on the children.  But having a regular routine, knowing that both parents agree on a particular decision and maintaining a loving relationship with both parents will make the transition and the coming years  easier.

Building Trust

Most likely, there is a lot of mistrust with the termination of the relationship.  Oddly, a parenting plan can help parents rebuild their faith in one another.   Creating the plan may also allow parents to hear from their children what they need and want.   Children, who may feel insecure in the new family setup, may be able to find a way to overcome emotional insecurity and learn to trust the family relationships again.

Starting Fresh

Laying out the plan ahead of time is not just good for the kids. it’s good for the parents too.  Following divorce or the end of a de facto relationship, parents have their own issues to cope with – living on one income, taking care of a home, and perhaps, even starting a new relationship.   Each parent needs to find time for him or herself to begin fresh but still be a responsible, caring parent.  A parenting plan that lays out the when and where, and leaves less room for surprises creates stability and structure for the parents as well as the children.

Financial Planning for Present and Future

A good parenting plan will detail who covers which expenses.   In addition to the basics like food and clothing, there are many “extras” that also need to be considered, including special medical and dental expenses, after-school activities and summer camp.  As children get older, parents need to think about driving lessons, university fees, and even weddings.  A good plan will take the future  and not just the current month or year  into consideration.  The current parenting plan doesn’t need to have all of these expenses included already, but it should provide a way for the parents to work out the division of these costs as they arise.  For example, parents may agree on percentages of incomes to be paid to a university fund for each child.    This prevents arguments between the “ex’s” and allows both sides to properly plan for the future.

A method for working it out

No plan is foolproof, and one of the most important parts of a good parenting plan is the mechanism for settling disputes.  For divorcing couples, this might even be the first time there is a plan for such inevitabilities in place.  Each family must figure out what works best for them.   Some may settle disputes by meeting over coffee in a neutral place.  Others may feel an outside mediator is necessary.   In many cases, just knowing a system for resolving problems exists helps families work through any difficulties that arise.

And one last note…..

Despite the plan, parents should remember that parenting doesn’t always follow a plan, despite the good intentions of both parents.   It’s inevitable that one parent will suddenly have an amazing work or vacation opportunity and ask the other parent to fill in, or a child will want both parents to be involved in a special project.   Parents need to remember that the children are at the center of any good plan.  They are not machines, they can’t always follow the adult rules parents make for them and they have their own needs and wants.   Parents need to remain open-minded, flexible and fair, even if every detail is not written into the plan.