There is a lot of confusion about custody, guardianship, access, residence and contact but these terms have now been largely abolished by amendments to the Family Law Act and replaced with the concepts of:
- “Lives with” Orders – i.e. where the child lives and with whom;
- “Spends time with” and “communicates with” Orders – i.e. arrangements for the child and the parent with whom the child does not normally live to spend time with and communicate with the child whether in person over the telephone, letter, email or by computer; and
- “Special issues” – i.e. any particular matter which requires specific mention. For example, sometimes parents want to specify particular arrangements regarding a child’s education, medical treatment or any other of the myriad issues relating to a child’s upbringing and welfare. Orders can be made in relation to any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.
In the absence of a Court Order, each parent has equal shared parental responsibility for the child. Obviously if the parents are separated the practical effect of that will be reduced somewhat as the parent with whom the child lives will automatically assume responsibility for a lot of the day to day issues such as deciding on the child’s bedtime and so on. However, in the absence of an Order to the contrary, equal shared parental responsibility is retained by both parents, meaning that decisions on major long term issues should not be made without consulting the other parent first. Major long term issues include education, religious and cultural upbringing, health and even choice of name.
Formalising parenting arrangements
Sometimes a parent will seek to formalise or clarify arrangements relating to the child. This may come about because of a dispute between the parents as to where the child will live or the amount of time the child will spend with the other parent. Of course, the majority of parents work out their own arrangements relating to the children and the Family Law Act now encourages all parents to try to resolve children’s issues without the need for Court proceedings. We take the view that unless there is a good reason to make orders then don’t as they get in the way of common sense discussions and variations to the normal living arrangements for children
Matters relating to the child are probably best worked out by the parents as they are the people who are going to have to live with the arrangement and make it work. If the parents cannot resolve any issues, usually the first port of call will be a Family Dispute Resolution Practitioner [see counselling and dispute resolution page]
Matters relating to a child sometimes involve not only the parents but also the grandparents, other relatives or people who have acted as foster parents. The Family Law Act recognises that these people may be integrally involved in the children’s lives and, indeed, the Act makes specific reference to the rights of grandparents to seek orders relating to a child.
Parenting Plans and Consent Orders
In the event that parents reach agreement about these issues (whether by their own efforts or with the assistance of a Counsellor, Mediator or Dispute Resolution Practitioner) they can have that written out in the form of a Parenting Plan or Consent Orders.
A Parenting Plan is a document which need only be written, signed documents freely entered (free from threat, duress or coercion) between the parties detailing parenting arrangements for the children.
If the parties wish to formalise their agreement by Court Orders, they can make an Application for Consent Orders. Subject to approval by the Court, the agreement between the parties will then be made an Order of the Court and either party can utilise the Court for enforcement of the Order.
It is important to be aware that in most circumstances a later Parenting Plan supersedes Consent Orders.
In the event that the parents are unable to reach agreement, they may issue an application to the Court. Generally, the matter will go to a conference where, if it is unable to be resolved, directions will be given for the preparation of the matter for a Court hearing and an approximate date will usually be given for the hearing. In urgent and deserving matters the court will make interim orders usually based on affidavit evidence and submissions made to the judicial officer hearing the matter. No surprisingly the Court makes orders that are in the best interests of the children.
Often at issue is the relationship of the child with a particular person, or what one party claims are the wishes of the child as to whom the child wishes to live. If the matter is to go to a hearing, an Order is often made for the parties to attend with a clinical psychologist for the purpose of the preparation of a Family Report. The parents, the child and any other significant person as decided by the report writer are usually asked to attend and a detailed written report is prepared. That report is released to the parties prior to the matter going into Court and is often used by them and their legal advisers as a basis on which to negotiate a settlement. If the matter proceeds to a hearing, the report is used to assist the Judge in dealing with issues such as the child’s wishes.
Independent Children’s Lawyer
In difficult matters, such as those where there is particular bitterness between the parents, where there is a suggestion the children should be separated from each other, where there is an allegation of child abuse, or where there is a cultural difference between the parents (for example because of them having different ethnic backgrounds), an Independent Children’s Lawyer can be appointed by the Court to look after the child’s best interests.
Best interests of the child
In deciding what Orders to make, the Court must consider the best interests of the child as the paramount consideration. In deciding what is in the child’s best interests, the Court considers the matters listed in Section 60CC of the Family Law Act 1975. The Court generally takes the view, that unless there is evidence to the contrary, it is in the child’s best interests to have a relationship with both parents and that is the view of all at Murdoch Lawyers. We are not interested in acting for people who use the children as pawns for financial gain or causing their ex-partner grief and pain.