‘Child custody’ is a term which is still widely used in the public for a child’s (or children’s) living arrangements and care arrangements.
The terminology which is now often used in the Family Courts and in the context of family law is who the child ‘lives with’ and who the child ‘spends time with’.
Regardless of whether parties refer to child custody arrangements; care arrangements; or residence it is important that all arrangements which relate to the children are in the children’s best interests. This includes who they spend time with and who they live with as well as practical matters such as how the child will go from living with/spending time with one person to living with/spending time with the other person (commonly known as ‘changeover’ or ‘handover’).
The law says that in making decisions about what is in the best interests of the child it is important that the child has a meaningful and significant relationship with both parents, but also (and so long as) the children is protected from harm (See Part VII of the Family Law Act 1975).
There are a number of factors which inform this decision (see Section 60CC of the Family Law Act 1975).
Every family and every set of circumstances is different. There is no ‘one size fits all’ model for determining what type of arrangements are going to work for you and your family.
Below we have set out some information which may be relevant to your circumstances. However, in our experience, one of the most important factors in determining the outcome is if targeted advice is obtained as early on as possible.
If you are separating or thinking about separation then we strongly recommend that you make an appointment with us to get specific advice which is relevant to your circumstances.
Formalising the Agreement
When parties separate there is no law which says that the arrangements in relation to the children must be formalised. If parties reach agreement about the care arrangements for the children and other matters relating to the children then it is fine to have an informal agreement.
However, there are very important strategic reasons why you may wish to have your agreement formalised or left informal. We recommend that you contact us to make an appointment in order to get advice about what may be appropriate for you and in order to understand the risk factors if you do or do not formalise the arrangements in relation to the children.
If you do choose to formalise your agreement in relation to the children it is possible to do so via a Parenting Plan or via Consent Orders which are lodged with the Family Courts. You can obtain useful information on Parenting Plans and Consent Orders at the Family Court of Australia website.
There are important differences between Parenting Plans and Court Orders. It is important that you have a full understanding of what these differences are before signing any documents relating to children.
In many cases, prior to going to Court to make an application in relation to parenting matters, you need to have attempted mediation, either via a public mediation organisation such as Relationships Australia or a private mediator who is able to issue you a Section 60I Certificate (see Section 60I of the Family Law Act 1975).
There are a number of circumstances in which you may not require a Section 60I Certificate in order to make such an application. These include instances such as when you have previously tried mediation and been issued a Section 60I Certificate within a certain period of time; or when there are circumstances in which the Court may consider that the application is urgent or in other circumstances.
Mediation can be very useful in helping parties resolve matters in relation to children. However, prior to engaging in mediation it is important that you meet with a lawyer to get an understanding of your legal rights and also understand some of the risks of entering into an agreement that you do not consider to be in the best interests of the children (even in the short term). It is important to remember that mediators are not there to provide you with legal advice or to represent you. The role of the mediator is to ‘mediate’ between the parties and try to get an agreement.
A good lawyer can also with your ex to maximise the chance of a good outcome; give your strategies to use.
If you would like further information in relation to this we invite you to book an appointment with us by calling (03) 8376 7000 to discuss this (or other matters) with one of our solicitors.
Examples of just some of the questions we can help you answer are:
My partner and I can’t agree on where the children will live, where do we go from here?
I’ve heard that we have to go to mediation, is this true?
I can’t possibly be in the same room with my former partner, how are we going to be able to go to mediation?
My former partner and I fundamentally disagree on what is best for the children, who can give us some objective advice?
I really don’t want to go to Court and have a judge make decisions about my children, what other options do I have?
I’ve heard that the mother always gets custody of the children, and fathers get alternate weekends. Is this true? What does this mean for our family?
I’m scared I won’t be able to spend enough time with my children, what can I do?
My partner and I don’t agree on lots of things, how are we going to decide on the children’s school, medical treatment and day to day parenting issues?
What do I do about getting some child support?
I want to move out of the state with the children, can I do this without the consent of my former partner?
I want to be able to travel overseas with the children, can I do this without telling my former partner?
My family hardly ever see the children now, what can I do?