Children's Issues & Child Custody
Often the most important issue for parents following separation is “who will get custody of the children”.
It is always important to remember that “custody” and “access” (the old terms regarding contact with children) are not about a parent’s right to spend time with their children; they are about the children’s right to spend time with a parent. The children’s best interests are the paramount consideration for the Court when determining living arrangements.
Under the Family Law Act (the Act), the current terminology is “lives with”, “spends time with” and “communicates with”. A parent doesn’t have custody of the children – rather, the children live with a parent and spend time with the other parent, or they live with each parent equally. A child might also communicate with a parent or grandparent.
In all cases the Act requires the Court to consider whether an equal time arrangement is in the best interests of the children. Where shared custody is not appropriate (which unfortunately is often the case), the Court is required to consider substantial and significant time for the non-resident parent. This means more than simply every second weekend – the Act is looking to have both parents involved in the day to day care of the children, such as taking them to sport practices and assisting with their homework.
Separate from the issue of custody and access, is the question of parental responsibility. This means who has the right to make long term decisions about the children’s care, welfare and development and includes things such as which school the children will attend, what religion or culture they will follow. There is a presumption of equal shared parental responsibility under the Act.
At Armour & Allen, we have a team of experienced child custody lawyers. We can advise you on your legal rights and responsibilities regarding the living arrangements of your children. Such advice might include varying proposals to take into account the age of your children or your changing work requirements.
Proposed Custody Arrangements
When preparing or considering a proposal regarding the children’s living arrangements, it is prudent to include specific details about the time the children will spend with each parent:
Until they start school
Once of school age, during school terms and during school holidays
For Easter and Christmas each year
On the children’s birthdays and, if appropriate, on the parent’s birthdays
On Mother’s Day and Father’s Day
For any other special occasions relevant to your family (such as Greek Easter)
In addition to the time the children will spend with each parent, a detailed proposal should include specific information about:
Whether both parents may contact the children’s school and attend school or extracurricular events
Medical information regarding the children, including notification in the event of a medical emergency
Notification of any change of residential address or contact details for the other parent
Mediation & Negotiation
Parents are strongly encouraged to agree upon arrangements in relation to the custody and contact of their children without resorting to Court proceedings. Not only will this help keep costs down for the parties, but parents who have negotiated their own arrangements are more likely to stick to them and foster a cooperative parenting approach than parties who require a Judge to make a decision for them.
To this end, the Act requires that parents participate in family dispute resolution prior to issuing Court proceedings, except in certain limited circumstances. Our lawyers can advise you as to your rights and obligations and discuss possible proposals before you participate in family dispute resolution.
If you are successful in negotiating an arrangement regarding the custody and access of your children, there are two ways to formalise the agreement:
Parenting Plan: This is a written document signed by both parents. While we recommend that it is prepared by a solicitor, it can be written by either party and simply signed (and dated) by both parties.
Consent Minutes of Order: These forms are usually prepared by a solicitor on behalf of one party to ensure the agreement is properly documented. Whilst it is recommended that parties both have independent legal representation, it is not necessary for the other party to have a lawyer. Once completed, the proposed Orders are submitted to a Registrar of the Family Court for review and then are made as final Court Orders. They provide you with the protection of formal Court Orders, without either party or their solicitors being required to attend at Court.
There are very significant differences between the two options.
Parenting Plans are not binding. If a dispute arises between the parties, either party can bring proceedings before the Court and the Court is not required to follow the agreement set out in the Parenting Plan (although it will often have regard to the terms of the Parenting Plan).
Consent Minutes of Order, once made by the Court, are binding. They are much easier to enforce and can have consequences for a party who contravenes the Orders (although Court proceedings will still be required).
Every relationship, parent and child is different. In some cases, a Parenting Plan is appropriate (particularly where a parent is in the process of negotiating long term arrangements and is seeking some certainty in the interim); in many others we recommend Consent Orders. Armour & Allen are here to advise you which option will best suit your circumstances and to prepare the necessary documents to ensure that you have all the protection you and your children need.
You also may be interested in reading:
- What is the legal age for children to choose which parent to live with in Australia?
- How can you get custody of your child
Armour & Allen are specialist Adelaide lawyers for providing legal advice tailored to your needs. We focus on realistic outcomes & guide you through the best options to achieve your goals.