Children’s living arrangements are as vital as they are complicated. Under Family Law, the best interests of the child are the most important consideration. When considering parenting arrangements after the breakdown of a relationship, the Court must also consider the child’s well-being and the value of living with the parent by considering aspects such as quality of life, access to education as well as whether the children will live with other relatives or other designated carers.
Technically, ‘child custody’ cannot exist because the law does not recognise a relationship of ownership parents may exert on children. That is, parents do not and cannot own their children. Rather, parents are under an obligation to protect their children’s rights until they are old enough to make decisions independently and with a reasonable level of maturity. The law recognises that age to be eighteen years. The term custody is still prevalent as common jargon and is used to refer to where the child resides or spends the majority of their time.
However, the Family Courts now prefer the terms ‘live with’ to describe what was once referred to as ‘custody’, and ‘spend time with’ to describe what used to be called ‘access’. The other term commonly used in parenting matters is parental responsibility. This broad term encompasses all the rights and obligations associated with making important decisions.
When the parents of the child separate, divergence in views about upbringing and child-raising tend to manifest more. Therefore, the law requires parents to attempt to resolve those issues through the process of mediation with a Family Dispute Resolution Practitioner (FDRP). A court will resolve disputes if parents cannot do so on their own.
The costs associated with parenting arrangements vary and depend on the issues specific to the dispute. While some disputes can be resolved with relative ease, some disputes can continue for months on end. Lawyers will charge for the time they spend assisting a party with their dispute. Generally speaking, the more serious, complex and lengthy the dispute, the higher the legal costs will be.
Who bears the burden of covering lawyer fees?
As a general rule of thumb, each party will bear the costs they individually incur; whether that be lawyer’s fees or court fees in parenting disputes. In rare cases, if the Court believes that one parent has acted completely unreasonably and without any objective merit, the Court may order that person to pay the legal fees of the other party.
Is Family Law gender neutral?
Contrary to the belief of some, the Family Law Act is gender-neutral. In reality, there is no inbuilt bias towards mothers or fathers. The law directs the Court to make determinations about a dispute by basing judgements on objectivity. The Court makes decisions after hearing the evidence from each party, and sometimes, third parties that meet with the parents and children. These parties then write a recommendation and present it to the Judge. Sometimes, in complex cases, the Court may also appoint a separate lawyer to represent the child.
Upon weighing up all of the evidence, the court will produce an outcome that it believes is most prudent and practical.
Frequently Asked Questions
What happens to the children after divorce?
Currently, it is presumed that both parents will have equal shared parental responsibility for their child or children. In practice, this means that the parents are required to consult each other and make joint decisions about significant issues impacting the child such as housing, health, education and religion. In some cases, equal shared parental responsibility may not be consistent with the child’s best interests and legal assistance may be sought to understand how interactions between children and parents will take place.
Furthermore, there is no legal mandate that requires children to spend equal time with both parties. All arrangements concerning children are determined in accordance with the best interests of the child.
Who bears the responsibility of taking care of the children?
The law allows anyone who has an interest in the care, welfare and development of a child to make an application to care for the child. This means that individuals who are not the biological parents, such as grandparents and other family members, may apply to the Court for Orders.
What is the role of the court in decision making about children?
The Court can make judgements it considers to be in the children’s best interests, even though this might conflict with the interests of their parties – Court orders primarily deal with where and with whom a child will live with. An order will not impact other responsibilities that parties may have in parenting. These responsibilities include medical, dental and educational matters. Such an order only deals with when a child lives with a parent or spends time with a parent.
How are living arrangements decided?
Family Law states that the welfare of the child will be at the centre of deciding where children will live.
What if there is a serious risk of Child Abduction?
If there is a legitimate fear that one party may remove the child from the other, or if the child has been removed, the Court may grant an urgent order to prevent the child from being taken away, to have the child returned or located.