How is Custody Dealt with by the Court?
The Family Law Act presumes that each parent should have equal parental responsibility for the children. ‘Parental responsibility’ is made up of things like medical matters, religion, culture, education and living arrangements. Everyday matters, such as what the children eat and wear, are not considered to be a part of ‘parental responsibility.’
Parenting Orders are made by the Court to determine how parental responsibility will be divided. The Court looks to the ‘best interests of the child’ when making a decision about parental responsibility.
The law has divided the ‘best interests of the child’ into two main considerations:
1. Protecting the child from physical and psychological harm; and
2. Having a meaningful relationship with both parents.
The physical and psychological safety of the child is where the priority lies.
The Court will also look at other factors, when deciding the best interest of the child, such as the children’s views (depending on age), the types of relationships that the children have with their parents, whether one parent has financially supported the other, amongst others.
The presumption for equal parental responsibility can be rebutted if the parent has abused a child of the family or engaged in family violence.
‘Parental responsibility’ is different to ‘custody,’ which is referred to by ‘time spent’ in Australian law.
Even if the Court decides that there is equal parental responsibility, this does not mean it will award equal time spent with the children. This will depend on what is practical and in the best interests of the children.
What is the Process for Getting Custody of my Children?
Depending on the relationship that you have with your former partner, it is best to try to resolve parenting issues through negotiation or mediation, i.e. not through Court.
That is because parenting matters tend to be ongoing; when circumstances in your children’s lives – or your lives – change, you will need to renegotiate with the other parent. This means that it is best to keep the relationship with your former partner amicable. Litigation does not tend to foster this kind of relationship because it can be quite combative in nature.
If we cannot resolve your matter through negotiation, then mediation is most often the next step. It is compulsory under the Family Law Act to attend what is referred to as ‘Family Dispute Resolution,’ which is essentially a type of mediation. To find out more about the benefits of mediation click here.
If you can resolve your matter without litigation, then it can be made into a Parenting Plan, or preferably Consent Orders, which are filed with the Court and then become enforceable by the Court.
If you cannot attend mediation because there is a history of family violence in your relationship (amongst other reasons), then we can obtain a certificate to excuse you from this.
Then, we are able to apply to the Court to have the Court make a decision in relation to the children. Litigation can be a lengthy and costly process, but we do our best to reduce delays and keep costs down.