Formalising the arrangements for ‘custody’ of children and who children are going to live with and spend time with after the separation of their parents can be a long and confusing process. It is important that proper arrangements are made promoting the best interests of the children. This article outlines the process of obtaining parenting orders.
What is ‘custody’?
The term ‘custody’ is often used when talking about parenting orders. However, in Australia, the term ‘parental responsibility’ is the one used in the Family Law Act to refer to all powers to make long-term decisions about a child’s upbringing, religion, and education. Parental responsibility also includes the power to make decisions about major medical procedures and applying for a passport or visa for the child. Until a child turns 18, it is presumed that both of their parents have equal shared parental responsibility for them, which means that both parents are entitled to jointly make decisions about serious and long-term issues. However, the courts have the power to make orders for one person to have sole parental responsibility in situations where this is in the child’s best interests.
The parent with whom the child lives has the sole decision-making power in matters that do not concern the child’s long-term welfare unless there is a formal agreement in place stating otherwise. For example, the person a child lives with can decide what to feed the child and what activities to do with the child on weekends whilst the child is in their care.
What are ‘live with’ and ‘spend time with’ arrangements in Parenting Orders?
The presumption of equal shared parental responsibility does not mean that a child necessarily should live with both parents or spend an equal amount of time with both parents. The questions of where children live and who they spend time with are usually referred to in family law as ‘live with’ and ‘spend time with’ arrangements.
There is no presumption under the Family Law Act that parents should have equal amounts of time with the children. However, if Parenting Orders are made for equal shared parental responsibility, the court must consider whether equal time is appropriate. If equal time is not appropriate, then the court must consider making orders that provide for ‘substantial and significant time’ with the non-residential parent which is legislated to mean weekend time and week time.
When considering what ‘time’ arrangements should be included in a Parenting Order, what is ‘reasonably practicable’ is also a consideration. A child has the right to have a meaningful relationship with both their parents which includes a right to spend time with both parents when in the circumstances this is reasonably practicable. Courts will not order children to spend time with a parent where doing so is not reasonably practicable. For example, if a parent lives a long distance away from the child’s school it would not be reasonable to order the child to spend overnight time with that parent during the week.
How are ‘live with’ and ‘spend time’ arrangements decided?
The following factors should be considered when determining the children’s living arrangements and how much time the children should spend with each parent:
- The age and maturity of the children;
- The involvement each parent has with the child
- The relationship the child has with each parent;
- The ability of each parent to provide for the child’;
- The wishes of the child;
- The child’s culture; and
- Any issues of child abuse or family violence in the family.
How do I formalize the arrangement as Parenting Orders?
After a separation, it is recommended that each parent consults with a lawyer who specialises in Family Law. Lawyers can assist by providing advice around the family law process and the principles the court will follow when deciding on parenting orders.
Before commencing family law litigation, parties are generally required to attempt family dispute resolution to attempt to arrive at a mutually acceptable solution. An exemption from this requirement may be granted in exceptional circumstances such as where there has been serious violence between the parents and mediation is therefore inappropriate. If a solution cannot be reached through family dispute resolution, an application for parenting orders can then be made.
If an agreement is reached, this can be drafted as a Parenting Plan or filed with the court to be formalised as Consent Orders.
A Parenting Plan is a signed agreement. It is not enforceable; however, it may be used as evidence of what was agreed if the matter ends up in court later.
What if we cannot agree?
If parents are not able to reach an agreement on all or some issues, a lawyer can draft and file an Application for Parenting Orders. This should only be done if all other avenues have been attempted or are inappropriate. In an Application, a parent may seek orders for parental responsibility, live with, spend time with, and other specific issues relevant to the situation. The Application should be filed with an affidavit setting out the applicant’s evidence.
If your matter goes to court, the judge will take into account a range of factors and considerations set out in the Family Law Act 1975 when deciding what orders to make. The Act ensures that when the court is making a Parenting Order, its paramount consideration is the best interests of the child.
If you need legal advice in any legal matter, please contact Armstrong Legal.