Your children are your first priority. Having to split time and responsibility for them is one of the most difficult processes to undertake during separation. You want what is best for them but there are many unanswered questions such as – who gets custody? Will they stay with me? How will they be supported? Can they be relocated to another country?
It can be an understandably distressing time for all parties involved. Having a trusted family law firm on your side can provide you with answers and help ease the process for you and your children.
How Are Decisions Made?
As mentioned in our Guide to Navigating Family Law in Australia, you and your former spouse can amicably decide on the terms of separation by consent order or by court order. A consent order involves coming to an agreement together (with the help of your individual family divorce lawyers) and submitting the agreement to the court. A court order requires decision-making intervention by the court via a judge. You will need to engage the best family law firm that can use its specialised knowledge and expertise to help you secure your rights as a parent.
The Best Interest of the Child
The Family Law Act 1975 (‘the Act’) governs child custody situations in Australia. It is important to note that the child’s best interests are the primary consideration of the court when contemplating decisions relating to the child/children during divorce or separation.
According to section 60CC of the Act, the law considers:
- the benefit to the child of having a meaningful relationship with both of the child’s parents; and
- the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect, or family violence.
The Act specifies that if the two considerations are at odds, point 2 will have greater value than point 1. The court will always prioritise the child/children’s safety above all else, including the opportunity for a meaningful relationship with the parents.
Other factors that the courts consider when deciding what is in the best interest of the child include:
- What the child/children themselves want;
- The kind of relationship the child/children has with the parents or grandparents;
- How actively each parent has participated in their parenting role in the past;
- Whether the parent has fulfilled their duty to maintain the child/children, financially or otherwise;
- The attitudes of each parent;
- The maturity, sex, lifestyle, background, culture, and traditions of the child/children and the parents; and
- If there is family violence and/or a family violence order.
The Need for Pre-Action Procedure
In most cases, the court will need to see that you and your former spouse have made genuine attempts to resolve your dispute together before going to court. Often, this can be achieved through counselling or mediation. If necessary, the court will direct parties to engage in Family Dispute Resolution Conferences before allowing an application for court orders. This attempt at alternative dispute resolution is mandated to encourage conflict-free solutions without the need for stressful court procedures.
There are, however, situations where you may be exempt from this pre-action procedure; if there is a history of domestic violence or child abuse, or any other occasion where there is a sense of urgency.
In these scenarios, it is imperative that you engage a divorce or separation lawyer to ensure that you and your child/children are protected.
Family Law courts can make orders regarding parenting arrangements under two main areas:
- parental responsibility; and
- care time.
Parental Responsibility – the Duties and Rights of a Parent
The definition of parental responsibility is enshrined in section 61B of the Family Law Act 1975. It states that:
“Parental responsibility, in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.”
What this essentially means is that both parents have an unequivocal duty to protect and care for their child/children. This can include a commitment to:
- safeguard your child/children from harm;
- provide your child/children with food, clothing, and a place to live;
- financially support your child/children;
- offer safety, supervision, and control;
- provide appropriate medical care and attention;
- provide an education.
Both you and your former spouse have an obligation to your child/children until they turn 18 years of age. This duty does not change regardless of the change in relationship with the other parent.
Who Has More of a Say? Equal Shared Parental Responsibility
The courts presume that it is in the best interest of the child for both parents to have an equally shared responsibility. This is assumed (as per Section 61DA of the Act) unless extenuating circumstances demand otherwise. Situations of alleged domestic violence and child abuse are instances where this presumption of shared parental responsibility would not apply.
Once again, it is the best interest of the child/children that is most important when courts contemplate child custody and parenting arrangements. The court intends to protect the child/children’s well-being, free from harm and exposure to unnecessary conflict.
In a situation where equal parenting is confirmed in agreement, both parents must make a genuine effort to communicate with one another and arrive at a joint resolution when it comes to long-term decisions. When it comes to day-to-day decisions, no consultation is required.
Examples of long-term decisions include; naming your child/children, selecting a religion, school enrolment or moving countries. Day-to-day decisions include; what your child/children eat for breakfast, what they wear, or how much television they can watch.
It is important to note that equal shared parental responsibility can be given to another adult who is not the biological parent, such as a grandparent or a step-parent.
Care Time – Time Spent Together
Care time refers to the physical time spent with the child/children and requires a different set of considerations. Namely, what is practical and reasonable for the child/children so as not to cause significant disruptions to their lives. Care time is usually divided in ratios, i.e. equal time, substantial and significant time, or regular time.
Equal shared parental responsibility does not also mean equal time spent together. Care time is either decided by the courts or agreed upon by consent between the parents.
If you and your former spouse cannot reach an agreement, you can apply to the court for a range of parenting orders. These are a set of orders made by a court about parenting arrangements for a child. You and the other party may enter into a parenting plan or apply to the court for consent orders.
A parenting order may deal with one or more of the following:
- whom the child/children will live with;
- how much time the child/children will spend with each parent and with other people (such as grandparents);
- the allocation of parental responsibility;
- how the child/children will communicate with a parent they do not live with, or other people, and;
- any aspect of the care, welfare, or development of the child/children.
The process involved in filing and applying for parenting orders can be strenuous. We can help. Get in touch to arrange a consultation with one of our experienced separation law specialists.
Can My Child be Relocated to Another State or Country?
If there is an order that the child/children are to spend time with both parties, they cannot be relocated, or indeed even travel overseas without consent. If an agreement cannot be reached, an application to the court must be made for orders allowing the travel to occur. The court will consider all elements relevant to the best interests of the child/children.
If you are concerned that your child/children are travelling overseas or being relocated without consent, you should seek legal help as soon as possible and apply for an order to prevent this from happening.
What about Child Support?
This area is not covered by the Family Law courts but is governed by the Child Support (Assessment) Act 1989 and carried out by The Department of Human Services.
Generally speaking, both parents are liable to pay child support if there is the capacity to do so. The amount of child support each parent pays is calculated by considering the below information:
- The income of each parent.
- Percentage of nights each parent has the child or children.
- The number of children aged below the age of 13 and the number aged between 13 and 17.
- Whether the parent has any other dependents.
- An application can be made before the Family Law courts to depart from the child support formula assessment if there are circumstances that justify such an application (e.g. one party has significantly more assets or financial resources than the other).
You can find a child support calculator via the Australian Government Department of Human Services website. Please be aware that this is merely a guide and does not guarantee an accurate calculation.
This general guide provides a brief overview of the intricacies of child custody law during a separation or divorce. The law can be applied in many different ways depending on the circumstances of your matter.
At KPL Lawyers, we understand the importance of protecting your rights as a parent and your child/children’s right to secure and stable parental arrangements. Therefore it is advisable to seek legal advice before commencing any proceedings or entering negotiations regarding your parental rights.
Our dedicated family law specialists at KPL Lawyers have decades of experience and can help you navigate this complicated process with relative ease. Should you have any further questions, don’t hesitate to contact us today for a consultation.