Who Gets Custody?
If you and your partner have separated and there are children from the relationship, you will need to put in place arrangements for the future parenting of your children. Parenting arrangements can be made by an informal or formal agreement between the parents or by a court order.
At law, there is no automatic entitlement to equal shared custody, nor is there any presumption in favour of the mother having primary custody. Regardless of whether you reach an agreement between yourselves or seek court orders, the parenting arrangements should reflect your particular circumstances and promote your children's best interests.
Reaching an Agreement without Court
If you and your partner can agree on parenting arrangements for your children between yourselves, you do not need to go to Court. You should, however, still seek legal advice about your rights and responsibilities before reaching an agreement.
Your agreement can be documented in a written agreement which sets out the parenting arrangements for your child, i.e. a parenting plan. A parenting plan is not the same as parenting orders. Rather, it is an informal agreement and cannot be legally enforced by the Court.
You can formalise your parenting arrangement by applying to the Court for consent orders, that is, court orders agreed upon by you and your partner. Consent orders are legally binding and once made they can only be changed in limited circumstances.
Going to Court
If you and your partner cannot agree on the parenting arrangements for your children, you may apply to the Family Court of Australia for parenting orders.
What are Parenting Orders?
Parenting orders are court orders which set out the parenting arrangements for a child. They will generally specify the following:
- Where and with whom a child will live.
- How much time the child will spend with each parent, including during holidays and on special events.
- The allocation of parental responsibility.
- When and how the child will communicate with the parent they are not living with.
- Additional matters, including education, religion, extracurricular activities, interstate or overseas travel, and other matters related to the child's welfare.
Who Can Apply for Parenting Orders?
The following people can apply parenting orders:
- The child's parents;
- The child;
- The child grandparents; or
- A person concerned with the child's care, welfare and development.
Compulsory Dispute Resolution
Parents are required to participate in alternative dispute resolution (ADR) prior to seeking court orders unless a relevant exemption applies. You will need to obtain a section 60I certificate from a registered family dispute resolution practitioner prior to filing an application to fulfil this requirement.
Under section 60I of the Family Law Act you can seek exemption if:
- Your matter is urgent.
- There is a real risk of family violence or child abuse.
- A party is unable to participate in dispute resolution because they lack capacity, or because it is impractical for a party to travel to a dispute resolution provider.
- The application relates to a contravention of an order made within the last 12 months where the contravening party has shown a serious disregard for their obligations under that order.
What Will the Court Consider When Deciding Who Gets Custody?
The Court will only make parenting orders where it is in the best interests of the child to do so. When determining what is in a child's best interests, the Court will take into account the primary and additional considerations set out in the Family Law Act.
The Primary Considerations that the Court will give significant weight to are:
- The benefit of the child having a meaningful relationship with both parents; and
- The need to protect the child from harm, abuse or neglect.
The Court will also have regard to the additional considerations, which include:
- The child’s wishes.
- The child’s relationship with each parent.
- The capacity of each parent to provide for the child.
- The extent to which each parent has participated in the child’s life.
- The practicality of the child spending time with each parent.
- The attitude of each parent to the child and parenthood.
- Any family violence.
Parenting Orders: The Legislative Pathway
When making parenting orders the Court is required to consider the allocation of parental responsibility and the practicality of equal time and/or substantial or significant time.
The Family Law Act presumes that equal shared parental responsibility is in the best interests of the child. Parental responsibility is not the same as shared care; rather, it encompasses the powers and responsibility of parents to make decisions relating to the day-to-day care of their children and to major long term issues e.g. education, religion, culture and health.
Equal shared parental responsibility merely means that both parents have responsibility for the care and welfare of their children. This requires the parents to cooperate and communicate with each other to make joint decisions concerning major long-term issues. It enables, however, any day-to-day decisions to be made by whichever parent has care of the children at that time.
The presumption of equal shared parental responsibility will not apply where there are reasonable grounds to believe that a parent has engaged in family violence or child abuse or if it is shown not to be in the children’s bests interests.
Equal Time Orders
If the presumption of equal shared parental responsibility applies, the court must consider whether equal shared custody is appropriate and practicable.
The practicality of equal time arrangements will depend on:
- Where the parents live and the distance between their homes.
- Whether the parents have the capacity to communicate effectively and resolve any difficulties which might arise; and
- How the arrangement will impact the child.
Substantial & Significant Time
Where equal time is not appropriate or practical, an order for substantial and significant time will likely be made, meaning:
- Time with the children on weekends, holidays and during the week; and
- Time which allows both parents to be involved in the child’s daily routine.
A parent will only be granted sole custody where the presumption of equal shared parental responsibility is rebutted. Here, the parent without custody will generally have limited orders for spending time with the children e.g. supervised visitation, or they may have no time at all.
Compliance with Parenting Orders
Parenting orders are legally binding. You must comply with parenting orders and positively encourage your child to comply with all the orders unless you have a reasonable excuse.
If your partner has failed to comply with a parenting order, you may make an contravention application or an enforcement application; however, you may have to participate in an ADR process before proceeding to court.
Changing Parenting Orders
Parenting orders can only be changed if there has been a significant change in circumstances. If you and your partner agree on the changes, you may change the order by:
- Signing consent orders; or
- Entering into a parenting plan.
If you and your partner are unable to agree on any changes, you will need to apply to the court to change the orders. Note that you will need to participate in ADR processes before proceeding to court.
DISCLAIMER: The information provided above is published for general informational purposes only and is not intended to be nor should it be relied upon as a substitute for legal or other advice.