Child custody is a term commonly used by parents when describing their children’s living arrangements after separation from their partner.
This term is no longer used by the legal profession and the family law system Australia. The terminology was changed in 1995 and was replaced with “who the child lives” with and “the time the child spends” with each of their parents.
The Family Law Act 1975 gives the power to the Family Law and Federal Circuit Court to make orders for the care and welfare of children in Australia.
When determining any dispute about children, the paramount consideration for the Court is to consider what is in the “best interests of the children”, with Section 60B setting out the following objectives:
- ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
- protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
- ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
- ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
It is always best if parents can agree on the care arrangements for their children. Parents are able to have these discussions with each other directly, or alternatively with the assistance of a legal representative. Mediations are commonly used to assist parents in coming to an agreement on the care of their children, and in most cases, parents must attend a mediation before they are able to commence Court proceedings. As a last resort, and if an agreement cannot be reached between the parents, both parents have the option of filing an application with the Family and Federal Circuit Court of Australia to obtain Orders for the care of the children.
When deciding upon arrangements for your child, parents need to take into account and consider the following factors additionally to that listed above:
- The age and maturity of the child;
- The child’s expressed wishes, though this is dependant upon their age and level of maturity;
- The need for children to have a regular routine;
- Whether it is reasonably practical for the child to spend equal time between households, or alternatively if it’s better suited for the child to reside primarily with one parent, and have substantial and significant time with the other parent;
- The need for the child to spend time with extended family;
- Consideration of issues such as choice of school, health care, sport, or religious matters;
- Consideration of the child’s culture; and
- Any other relevant factor to your child’s individual situation.
If you are able to reach an agreement about your parenting arrangements, there are three options available to parents to document the agreement.
Firstly, you can have simply a verbal or informal agreement between parents which is not necessarily documented in any way.
Secondly, you could formalise your agreement into a Parenting Plan. A Parenting Plan is a written agreement that is signed by both parties, documenting the care arrangements for the children. It is not binding upon both parties, however they are beneficial for parents as they clearly set out the care arrangements for each parent to follow. A Parenting Plan also provides a lot of flexibility for parents to amend or update depending upon changing circumstances, or as the children get older.
Thirdly, you also have the option of formalising your agreement reached in the form of an Application for Consent Orders. The Application is lodged with the Court and if they are approved the orders become binding and enforceable on both parties. Parenting orders remain in place until a child turns 18 years of age, and there are various remedies available to parents for enforcing Court Orders.
We’re here to help. Simply contact one of our experienced family law solicitors to discuss your matter. We offer a fixed fee initial consultation. We also have solicitors that are on the NSW Legal Aid panel.
