Australian law focuses on the rights of children to have an ongoing relationship with both parents so that separating from your partner or spouse doesn’t mean that you are separating from your child or children.
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 will the child or children live with?
- How will they spend time with the other parent?
- How will both parents be kept in the loop in regard to important decisions such as education and health?
Joint Custody and Shared Responsibility
Joint custody or shared responsibility means that both parents have legal rights and responsibilities towards the child. It doesn’t mean that the child will spend half of their time with one parent and half with the other, but that each parent has an equal say in decisions relating to the child in areas such as health and education. Even if the child lives with the other parent you may still have joint custody.
But doesn’t the law now say that children have to spend equal time with each parent?
No, it doesn’t. The law ensures that the best interests of the children are served first. 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.
If the court is to provide equal shared responsibility then it will also consider whether equal time is in the best interests of the children and whether it’s practical. Rather than equal time, for example, the court may order substantial and significant time be spent with the other parent, which might translate to be 4 nights per fortnight rather than 7.
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.
Recent changes to the Family Law Act 1975 mean that you will need to attend family dispute resolution before applying for parenting orders. 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.
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.