Australian law focuses on the rights of children to have an ongoing relationship with both parents. The Australian law is aimed at making parenting arrangements that are in best interestsof the child.
Although the terms ‘custody’, ‘residence’, ‘contact’ and ‘access’ are no longer used much by lawyers today, the issues behind the jargon are still on the top of the list of concerns for separating couples, namely:
- Who is responsible for long term decisions for the children?
- Who will the child or children live with?
- How will they spend time with the other parent?
Shared Parental Responsibility
By law, each of the parents of a child who is not 18 has parental responsibility for the child and Changes in the relationship between the parents, usch as speparation or divorce, does not affect parental responsibility.
A parenting order made by a Court having jurisdiction over Family Law matters may however, in some circumstances, change the extent of parental responsibility of a parent or parents as it applies to long term decisions such as education, health and religion.
If a Court makes an order for shared parental responsibility both parents must consult each other before making decisions about long term matters such as education.
Does this mean that the children must spend equal time with each parent?
Shared parental responsibility does not mean that the child will spend half of their time with one parent and half with the other. It means that each parent has an equal say in decisions relating to the child in areas such as health and education. This will be the case even if the child lives with the other parent and spends time with you.
The law ensures that the best interests of the children are paramount. 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 to protect the child from harm.
However, if the Court provides for decides that the parents should have equal shared responsibility then the Court must consider whether equal time is in the best interests of the children and whether it’s practical.
If the Court does not consider equal shared time as appropriate then the Court can make an order that the child live iwth one parent and spend substantial and significant time with the other parent. For example this might mean that the children live with one parent and spend 4 nights a fortnight with the other parent.
Where do I start?
Firstly, get legal advice. Your lawyer will take you through all of the areas which need to be considered and document what you think is a fair approach to arrangements for your children. If your partner is agreeable, your lawyer can help you formalise the document without proceeding to costly court action.
If your differences are unable to be settled, then you will need to commence on the path to having parenting orders issued by the Family Court or Federal Magistrates Court.
Before commencing court proceedigns you must attend family dispute resolution before applying for parenting orders. If you are unable to resolve yoru differences and cometo an agrement regarding the care of your children 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 certain exceptions to attending with a FDRP in matters of urgency.
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.
Why use a lawyer?
As lawyers experienced in this process we can advise you in regard to the complexities of your specific situation as well as guide you through what can be a stressful and confusing process. We can help take the heat out of a difficult emotional situation and negotiate on your behalf to obtain the best possible result for your children. And if it comes to court, we are deeply familiar with the court system and can use our experience to your advantage.