Parenting or Children family law matters are commonly known in the public as child custody, however, child custody is not a term used in the Family Law Act 1975. In Australia, our law focuses on:
- Parental responsibility;
- Who the child lives with and how much time the child spends with the other parent; and
- How the child communicates with each parent when in the care of the other parent.
Parental responsibility relates to all the duties, powers, responsibilities and authority, which a parent has in relation to the child. Practically speaking, it is reference to the decision-making process relating the child’s upbringing. In Australia, the presumption is that the parents of the child should continue to have shared parental responsibility, meaning that both parents should make decisions together about the major long-term issues affecting the child. This presumption can rebutted by one party in an application for sole parental responsibility seeking to have the power to make decisions conferred solely on them, however, these applications cannot be made lightly.
Parental responsibility does not refer to the day to day decision making of a parent when the child is in their care.
The living arrangement of the child after separation is a separate consideration to parental responsibility, although, if reasonably practicable, it is common for the courts to make an order for a shared care arrangement with the parents to spend equal time with the child. In many circumstances, however, an arrangement allowing for the child to spend equal time with both parents is not realistic due to factors such as the child’s age, a parent’s work commitments and geographical restraints. In these circumstances, whilst the child is not to spend equal time with both parents, the Court will look to ensure that the child spends substantial and significant time with each parent.
In all parenting applications, the Family Law Act requires the court to regard the best interests of the child as the paramount consideration.
Before you file any parenting application in court, you are required to make a genuine effort to resolve any child-related dispute by attending family dispute resolution (FDR) with an FDR practitioner. If the dispute is not resolved at FDR, or the FDR practitioner deems FDR inappropriate in your circumstances, you will be provided with a section 60I certificate which is to be filed with your application.
If FDR resolves any dispute and you and your former spouse come to an agreement relating to the care and welfare of the child, you can then formalise this agreement by either a parenting plan or consent orders.