Child custody and parenting

Child custody’ is a term which is still widely used in the public for a child’s (or children’s) living arrangements and care arrangements.

The terminology which is now often used in the Family Courts and in the context of family law is who the child ‘lives with’ and who the child ‘spends time with’.

Regardless of whether parties refer to child custody arrangements; care arrangements; or residence it is important that all arrangements which relate to the children are in the children’s best interests. This includes who they spend time with and who they live with as well as practical matters such as how the child will go from living with/spending time with one person to living with/spending time with the other person (commonly known as ‘changeover’ or ‘handover’).

The law says that in making decisions about what is in the best interests of the child it is important that the child has a meaningful and significant relationship with both parents, but also (and so long as) the children is protected from harm (See Part VII of the Family Law Act 1975).

There are a number of factors which inform this decision (see Section 60CC of the Family Law Act 1975).

Every family and every set of circumstances is different. There is no ‘one size fits all’ model for determining what type of arrangements are going to work for you and your family.

Below we have set out some information which may be relevant to your circumstances. However, in our experience, one of the most important factors in determining the outcome is if targeted advice is obtained as early on as possible.

If you are separating or thinking about separation then we strongly recommend that you make an appointment with us to get specific advice which is relevant to your circumstances.

If you would like further information in relation to parenting matters contact us make an appointment with one of our lawyers.

When parties separate there is no law which says that the arrangements in relation to the children must be formalised. If parties reach agreement about the care arrangements for the children and other matters relating to the children then it is fine to have an informal agreement.

However, there are very important strategic reasons why you may wish to have your agreement formalised or left informal. We recommend that you contact us to make an appointment in order to get advice about what may be appropriate for you and in order to understand the risk factors if you do or do not formalise the arrangements in relation to the children.

If you do choose to formalise your agreement in relation to the children it is possible to do so via a Parenting Plan or via Consent Orders which are lodged with the Family Courts. You can obtain useful information on Parenting Plans and Consent Orders at the Family Court of Australia website (www.familycourt.gov.au).

There are important differences between Parenting Plans and Court Orders. It is important that you have a full understanding of what these differences are before signing any documents relating to children.

Collaborative law is our preferred method of resolving matters in relation to child custody and/or financial matters in most cases.

Collaborative law is a process used to resolve family law disputes. We find that Collaboration allows parties to be involved in and control the process in ways that they otherwise would not if the matter went to Court. Collaboration works well for both ‘easy’ cases and ‘tough’ cases, this includes where the other party is difficult to deal with and or where the circumstances of the case are complex.

The process starts by you and your former partner agreeing not to go to Court. Although this doesn’t necessarily mean that you like each other or that you are able to get along, it does mean that you both recognise that Court is damaging for families and you want a process which leaves you and your family better off, rather than feeling further apart.

It is a dignified and confidential process, in which your private matters are not aired in open Court and where the parties all agree not to disclose confidential matters.

If the process fails (and the statistics as well as our experience tell us that very few do fail), both parties’ lawyers and other professionals who are involved in the process can no longer act for the parties.

Collaboration is a process in which the focus is on your interests (what is important to you) not necessarily only on what your legal rights are, or just what the law says is ‘fair’ (which is often very uncertain and doesn’t necessarily match up to what you think is fair).

Importantly, in the process you are not left on your own. Each party has their own lawyer who is there to understand fully what is important to you and to ensure that is taken into account in the negotiations including those things that a Court would not consider. E.g. how can I try to ensure that the children will not have to switch schools as a result of a property settlement and having to sell the matrimonial home).

The two lawyers work as a team, along with other relevant professionals when appropriate, such as accountants, financial planners, child psychologists and coaches.

Collaboration is generally more cost effective and faster than litigation. And in Collaboration, it is often the case that one of the preliminary matters that needs to be dealt with is how the parties pay for the process. This often means that instead of one party having incentive to delay matters and ‘run up’ the legal costs for the other party, that incentive is removed.

Although it is not possible to issue subpoenas in a Collaboration, there are other ways to gather information, including having the other party sign an authority which authorises you to ask questions and get information directly from professionals or institutions.

Any agreement reached via the Collaborative process is binding and enforceable, this includes agreements in relation to children if the parties decide that the agreement should be formalised.

Read more about Collaborative Law here

In many cases, prior to going to Court to make an application in relation to parenting matters, you need to have attempted mediation, either via a public mediation organisation such as Relationships Australia or a private mediator who is able to issue you a Section 60I Certificate

There are a number of circumstances in which you may not require a Section 60I Certificate in order to make such an application. These include instances such as when you have previously tried mediation and been issued a Section 60I Certificate within a certain period of time; or when there are circumstances in which the Court may consider that the application is urgent or in other circumstances.

Mediation can be very useful in helping parties resolve matters in relation to children. However, prior to engaging in mediation it is important that you meet with a lawyer to get an understanding of your legal rights and also understand some of the risks of entering into an agreement that you do not consider to be in the best interests of the children (even in the short term). It is important to remember that mediators are not there to provide you with legal advice or to represent you. The role of the mediator is to ‘mediate’ between the parties and try to get an agreement.

The Court can make Orders in relation to children which include matters such as:

  • Who the child lives with and who the child spends time with (‘child custody’);
  • What type of contact the children have with their parents and other people and what sort of restraints (if any) there will be on that contact;
  • Who has the power to make long term decisions in relation to the child (e.g. where the child goes to school; what sort of medical treatment the child will receive; what religion the child will practice etc);
  • Where a child will live;
  • Whether a child will be able to travel outside of Australia and what (if any) will be the conditions of the travel;
  • Involvement of counsellors or other people in the child’s life;
  • Whether one party can obtain a passport for a child in circumstances where the other parent has not signed a passport application form;
  • Orders which restrain a party from doing certain things when the child is in that person’s care.

Parties can apply to the Family Courts (either the Federal Circuit Court or the Family Court of Australia, depending on the circumstances of the case) for Orders in relation to these matters.

This application generally involves filing an ‘Initiating Application’ which is a document which sets out the Orders the party is seeking both on a final as well as in interim basis in some cases.

This application is accompanied by an ‘Affidavit’ or several Affidavits which set out the evidence that the party is relying on in support of their application. It is important to have an understanding of what evidence may be required in order to maximise your chances of being awarded the Orders you are seeking, both at the early stages of the proceedings as well as at the final stages of the proceedings.

It is our experience that the outcome of the case is significantly impacted upon by what has happened prior to the parties filing an application in the Court and also what is contained in these early documents. Therefore, you should obtain advice and arm yourself with the relevant information you need well before commencing Court proceedings.

Parenting Orders can be applied for by:

  • Parents of the child (sometimes it is not clear who the ‘parent’ is for the purposes of being able to make an application to the Court. You may need advice on who can qualify as a parent in your case);
  • Grandparents of a child (where the law has specific definitions of who qualifies as a ‘grandparent’);
  • Any other person who may be concerned with the welfare of a child (where there are a number of factors which will impact upon whether a person is one who falls into this category).

Often in parenting matters parents and children see a psychologist or qualified counsellor for advice or to get a report about children’s arrangements or issues that have arisen. This can be because a Court orders it or even without litigation.

Family Reports can deal with a range of matters. They can answer specific questions or just provide general observations and/or recommendations.

Family Reports can be done either by a Family Consultant of the Court or by a private Family Consultant, which may include counsellors or persons who are have certain qualifications such as clinical psychologists or psychiatrists.

It is also possible to undergo counselling with a psychologist or counsellor where a report may or may not be prepared. Sometimes this counselling (and reports that are prepared in the context of the counselling) will be confidential and other times it will not be. It is very important that you have an understanding of when the process is reportable and when it is confidential and what that means for you.

A Family Report can play a crucial role is determining what arrangements should be in place for children. For this reason it is very important that you get advice about what sort of Family Report you should be seeking, how the Report should be conducted, who the best person to conduct the Report is, and what questions the Report should answer.

If the Family Report is Ordered by the Court then generally you will receive a copy of the Report prior to the final hearing (unless there are specific reasons why you should not be provided with the Report). Once the Report is released, if you disagree with what the Report in any way, including but not only what the recommendations in the Report are, then there are a number of ways that the Report may be challenged, either at a final hearing or prior to it.

Examples of just some of the questions we can help you answer are:

  • My partner and I can’t agree on where the children will live, where do we go from here?
  • I’ve heard that we have to go to mediation, is this true?
  • I can’t possibly be in the same room with my former partner, how are we going to be able to go to mediation?
  • My former partner and I fundamentally disagree on what is best for the children, who can give us some objective advice?
  • I really don’t want to go to Court and have a judge make decisions about my children, what other options do I have?
  • I’ve heard that the mother always gets custody of the children, and fathers get alternate weekends. Is this true? What does this mean for our family?
  • I’m scared I won’t be able to spend enough time with my children, what can I do?
  • My partner and I don’t agree on lots of things, how are we going to decide on the children’s school, medical treatment and day to day parenting issues?
  • What do I do about getting some child support?
  • I want to move out of the state with the children, can I do this without the consent of my former partner?
  • I want to be able to travel overseas with the children, can I do this without telling my former partner?
  • My family hardly ever see the children now, what can I do?

Read about Child Support here