What is Child custody
If you have separated and have children, living arrangements for the children need to be decided. Under the Family Law Act, parents are responsible for the care and welfare of their children until they reach 18 years of age.
Framework for Child custody
In Australia, the Family law Act requires the best interest of the child to be considered, which encompasses several key considerations. It is important that children have a meaningful relationship with each parent, and they are protected from harm. The Family Law Act also presumes that each parent has ‘equal shared parental responsibility’. ‘Parental responsibility’ is all about the legal duty, power, responsibility, and authority a parent has in relation to a child. A person with parental responsibility for a child is responsible for all matters relating to, for example, the care, welfare, and development of a child, such as the child’s schooling, cultural upbringing, health, name, and living arrangements.
This responsibility does not change because the relationship between the children’s parents breaks down.
Understand “What the Child’s Best Interest Means in Court“.
Parenting and child custody
A parenting plan is a non-binding agreement between parties which sets out the agreed parenting arrangements for the children. A parenting plan is an inexpensive alternative which allows the parties greater flexibility in preparation and control of the arrangements. However, it is important to be aware a parenting plan is not binding. If one party does not comply with the agreement there is no mechanism of enforcement.
If you and your partner cannot reach an agreement about children’s matters, or if there are urgent issues that need to be addressed, Family Court proceedings may be necessary. We can represent you in court and guide you through what can otherwise be a confusing process.
If the parties agree on the parenting arrangements of the children, a parenting order may be made. This involves an application to the court for consent orders which sets out the parenting arrangements including who the child will live with, the time they spend with each parent or relative, communication between the parent and the children and any other aspect of care and welfare for the child.
The benefit of a parenting order is that it is binding. The order is granted and endorsed by the court. If one party does not follow the order, an application can be brought to the court for contravention.
you must try to
resolve the matter
Parties to a parenting dispute are required to attend compulsory mediation with a family dispute resolution practitioner to attempt to resolve the dispute before making application to the Court.
A certificate known as a “Section 60I Certificate” will be issued after the family dispute resolution process is undertaken, which a party can then use in support of their application to the Court. There are exceptions to this rule, such as urgency.
Can I appeal a Child Support decision?
If you are unable to settle or matter, then you may be forced to seek the assistance of the Federal Circuit and Family Court of Australia (FCFCOA) to resolve your matter.
Your case in will be commenced once all attempts to resolve your case by negotiation have failed.
A case in the Federal Circuit Court and Family Court of Australia starts by filing the following documents:
- An Initiating Application. This sets out the orders you want the court to make and has some brief details about you.
- An affidavit. This is the evidence you will rely on to have the court make the orders you want
- A Genuine Steps Certificate, confirming the applicant’s compliance with the pre-action procedures;
- If the application seeks interlocutory orders, an affidavit stating the facts relied on in support of the interlocutory orders sought.
- A 60I certificate from a Family Dispute Resolution Practitioner, unless a party submits that an exemption applies, in which case an affidavit or an Affidavit – Non-Filing of Family Dispute Resolution Certificate setting out the factual basis of the exception claimed under;
- A Notice of Child Abuse, Family Violence or Risk;
- A Parenting Questionnaire;
- An Undertaking as to Disclosure;
- A copy of any family violence order affecting the child or a member of the child’s family; and;
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You have Questions. We have Answers.
Frequently asked questions
Can I go straight to Court?
Before making an application to the court, the Family Law Act requires parties to make an attempt to resolve disputes by using family dispute resolutions services (FDR).
There are some exceptions which may include an urgent application, allegations of family violence, and allegations of abuse.
Are the views of the Children considered?
When making a parenting order, the court does not hear from the children directly as they do not go to Court. The children’s views are obtained by a Family report or through an Independent Children’s Lawyer (if one is appointed).
While the children’s views may be useful to the court, it does not mean the court will make an order for what the children want.
The court will determine and make orders for what is in the child’s best interest.
What is the role of an Independent Childrens Lawyer (ICL)?
The ICL assists the court in deciding what arrangements are in the children’s best interest.
The ICL obtains information about the children’s views, collates relevant information, and provides this to the court.
The ICL makes recommendations and proposes arrangement which would be in the child’s best interest.
Can I collect my child from daycare?
The law in relation to collection from daycare and other childcare facilities provides that the child’s enrollment record must identify who is authorised to collect the child from the children’s service.
If you are not on the enrollment form, this will cause further complications.
You should make inquiries with the daycare to ensure they will release the child to you prior to attending the pickup.
You should also let the other parent know of y our intentions so as not to cause a panic.
At what age can a child decide where to live?
Family Court will take a child’s wishes into account but will give weight to those wishes which are proportional to the child’s maturity and ability to express his or her wishes.
I am a Grandparent, can I apply for custody?
If you are a grandparent and you have been involved in the care, welfare and development of your grandchildren, then you may be able to file an application for orders at Court if you are being denied time with your grandchildren.
The Court recognises the importance of the relationship between grandparents and their grandchildren and how this relationship can foster a child’s welfare and development.
