Generally parents who separate agree on the future parenting of their children. Some parents choose for the children to live with one parent, and to spend alternate weekends with the other parent. Others agree on a week about basis, where the children effectively have two homes, and spend equal time in each home with each parent. There are many other examples of parenting arrangements that parents put in place, unique to their family units and to their children.
Sadly, not all separated parents agree on the parenting of their children, and many end up in the family law courts. Litigating children's matters can be traumatic to both the parents and the children and is considered by many parents only as a last resort. It is also emotionally straining for the parties' lawyers, the children's independent lawyers, and for the experts who are asked to make recommendations about the type of children's orders a court should make.
The issues that disputing parents ask the family law courts to determine include applications for passports, medical procedures, choice of school, or permission to relocate the children some distance away. In addition, many parents seek custody of their children.
The term 'custody' is no longer used by the family law legislation or the courts. However, it is still used by ordinary people, parents, schools, and the media. For this reason, the term 'custody' is also used throughout this article.
Traditionally, when a parent gained 'custody' of the children it meant that they were responsible for the care of the children and made all of the decisions affecting them. It meant that they had the power, so to speak, to decide how to parent their children. The other parent only had 'access' to the children. 'Access' gave the impression that that parent had no parenting rights, or no power to join in the decision making about their children.
In 1995 the terms 'custody' and 'access' were changed to 'residence' and 'contact'. These changes were made because of concerns that the terms 'custody' and 'access' were disempowering and implied that children were possessions. Despite these changes, the most common parenting arrangements continued to be the 'every second weekend' and 'half of all school holidays' arrangement for the 'contact' parent.
In 2006 the terms 'residence' and 'contact' were again changed, this time to their current form of 'the child lives with' and 'the child spends time with'. These changes were made to provide family friendly terminology and to encourage parents to focus on the relationship between them and their children, rather than the time spent with each parent.
The 2006 changes also put emphasis on parental responsibility, protecting the children from harm, and the children having a meaningful relationship with both parents. As a result, if it is in the best interests of the children, and where it is reasonably practicable, the courts work towards the parents having joint parental responsibility, and the children spending equal time with each parent.
When a parent wants to gain 'custody' of their children, they need to seek two things:
Sole parental responsibility; and
That the children live with them.
Sole parental responsibility
Sole parental responsibility means that the parent makes all of the decisions affecting the children, without having to consult the other parent. Joint parental responsibility means that the parents must consult each other about decisions (other than day to day decisions such as what the child is to wear or eat). Decisions about passports, travel, schools, and for example medical procedures, must be made together with the other parent unless one parent has sole parental responsibility.
The court will grant sole parental responsibility if it is in the children's best interests. The most obvious cases are where one parent lacks mental capacity because of, for example, a mental illness. Another is where the parent is incarcerated, or where there is evidence of the parent making decisions that put the children at risk of harm. For example, repeated driving under the influence of drugs or alcohol, or exposing the children to violence or physical or psychological harm.
The evidence that must be presented in these cases must be independent evidence. Allegations made by one parent are not enough. Independent evidence would include Police reports or credible witnesses. Parents in this situation must also remember that just because one parent may have an alcohol or drug dependency problem does not mean that they will automatically lose parental responsibility. If they are willing to make changes and take their parental responsibility seriously they will be given that chance. They may, therefore, lose parental responsibility temporarily until they demonstrate that they no longer pose a risk to the children. They may attend parenting courses, anger management courses, counselling, and medical treatment or therapy. During this time the parent may still be spending regular time with the children, so that when the parent cleans up their act, so to speak, the family law expert is likely to recommend to the court that they be given joint parental responsibility and spend more, or equal time, with the children.
Children living with one parent
The other order that parents often seek is that the children live with them, and spend time with the other parent. They may seek the 'alternate weekend' arrangements for the other parent, or something similar. It will be difficult for a parent to obtain this order if the parents live in close proximity to each other and there is no evidence of the children being at risk of harm from the other parent. If one parent seeks equal time with the children and this is in their bests interests, the other parent's application for the children to live with them will not succeed.
In these circumstances it is advisable that a parent not relocate the children such distance that it is no longer practicable for the children to spend equal time with each parent and still attend the same school. There are many cases where a parent made such a unilateral decision and was ordered by the court to move back into the area where they came from to maintain the relationship between the children and the other parent. If a parent finds themselves in a position where they have to move with the children, they should first try to reach an agreement with the other parent. If no agreement can be reached, the parent wanting to relocate with the children should ask the court for permission before doing so.
Parents who seek sole parental responsibility or that the children live with them should become familiar with Part VII of the Family Law Act 1975 (Commonwealth). The most important sections in 'custody' cases are:
60B - how the best interests of the child are met;
60CA - the best interests of the child are the paramount consideration;
60CC - how a court determines what is in a child's best interests;
60CD - how the views of a child are expressed;
61B - meaning of parental responsibility;
61C - each parent has parental responsibility;
61DA - presumption of equal shared parental responsibility; and
65DAA - court to consider whether child spends equal time or substantial and significant time with each parent.
Familiarity with these sections means that the parent will have a clearer understanding of how a court will consider what orders to make. The parent will understand that both parents have joint parental responsibility, unless it is clear that it is not in the children's best interests, for example, because of being exposed to violence. The parent will also understand that in time the other parent may regain their joint parental responsibility.
Further, the parent will understand that the court must consider whether equal time with both parents is in the children's best interests, and whether it is practicable. If it is, and if one parent seeks equal time, it will be ordered by the court. If it is not reasonably practicable then the court will order significant and substantial time. An example of where equal time would not be practicable is where the parents live such distance apart that the children could not attend the same school, or where they would have to spend some time travelling from the other parent's home to their school each day.
Section 60CC is particularly important for parents to consider. This section lists the considerations that are taken into account to determine what is in the children's best interests. The primary consideration is that the children have a meaningful relationship with both parents and be protected from harm. The additional considerations are, among other things, the views of the children, capacity of each parent to provide for the needs of the children, family violence, and any other fact or circumstance that the court thinks is relevant.
A parent who is considering obtaining custody of their children should ask themselves:
Do I want orders for sole parental responsibility, orders that the children live with me, or both?
Why do I want sole parental responsibility? Is it because I have genuine concerns about the other parent's ability to care for the children and the children being at risk of harm, or because I just don't agree with their parenting style?
Why do I want the children to live with me? Is it because I am genuinely concerned about their ability to adjust to a week about arrangement, or because there are some issues with the other parent's new lifestyle or partner?
Are my children exposed to violence, abuse or neglect, or are they at risk of physical or psychological harm? What evidence do I have? How do I get the evidence without causing further harm to the children, for example, by questioning them?
It is advisable that a parent considering these questions seek independent legal advice. Only in urgent cases should a parent withhold the children from the other parent, or relocate with the children. If a parent has to act urgently without consulting the other parent, then as soon as they have done so, the other parent should be contacted. This may be done through a solicitor.
Making immediate contact will give the parents an opportunity to reach an agreement about the future parenting of the children, for example, through mediation. This is the best way to avoid litigating children's matters. Litigation is stressful for the parents, and does, in one way or another, involve the children. This is not in their best interests. Parents seeking 'custody' of their children should therefore consider their reasons for doing so, their prospects of success, and the harm that the children could be exposed to through litigation. There may be other ways of addressing the issues they are experiencing, and legal advice or counselling could be of assistance before this type of court action is taken.
The writer thanks Ms Amanda Kost-Ryan, Law Student at the Queensland University of Technology, for her research on the history of the changes to the terminology used in family law legislation.
Grace Lawson is a Barrister and Mediator in Brisbane and practices in the areas of family law, employment law, and personal injury law. Grace mediates disputes in all areas of law. For contact details see Grace's website at www.gracelawson.com.au
You can read more of Grace Lawson's Profile here.
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