Clients often ask for legal advice about “custody” arrangements for children. However, under the Family Law Act 1975 (Cth), the concept of “custody” no longer exists. Instead, when deciding parenting Orders the Family Law Courts must consider the issues of:
- the allocation of “parental responsibility”;
- which person the children should “live” with; and
- which person the children should “spend time” with.
In all decisions about children, the Court must have regard to the child’s best interests as the paramount consideration.
In determining parenting disputes on a final basis, the Court must first determine the issue of the allocation of parental responsibility. This is colloquially called “guardianship”. This is the responsibility to make important long term decisions about children, such as decisions about their education, medical treatment, where they live and religious upbringing. Commonly, parents will be ordered to have equal shared parental responsibility with respect to the children, requiring such decisions to be made together. In certain defined circumstances, (including where there is significant domestic violence) the Courts can award one parent sole parental responsibility for the children. This enables that parent to make such decisions about children to the exclusion of the other parent.
Once parental responsibility is resolved the Court must determine who the children should live with. Depending on the individual circumstances of the case, the Courts can Order that the children:-
- Are to live with both parents (such as by living with one parent for one week and the other parent for the next week);
- Are to live with one parent and spend substantial and “significant time” with the other parent (commonly includes every second weekend, half of school holidays and special occasions);
- Are to live with one parent and spend no time with the other parent. This occurs in very few circumstances.
Given the misconceptions about Family Law in Australia, it is important that parties seek independent legal advice about parenting before formalising any short term or final agreements, or before they commence or respond to Court proceedings.