Hundreds of thousands of Australian children live with only one parent, and spend varying amounts of time with the other. Usually they live with Mum, and spend time with Dad, but the law does not presume that this should be the case.
Before we go further, we need to talk about terminology.
When the Family Law Act was introduced, it used the terms "Custody" and "Access", and these are still probably the terms most non-lawyers use. Then they were changed to "Residence" and "Contact", and in 2006 the words "lives with" and "spends time with" were introduced. "Parental Responsibility" covers not just responsibility, but also the right to be involved in decisions about children - education, sport, health and so on.
2006 saw major changes to the Family Law Act. Unless a court decides otherwise, the parental responsibility is joint and shared, so neither parent has the right to make major decisions themselves. These decisions typically cover issues such as schooling, name changes and medical issues.
Time spent with a child by the non-residential parent should be "substantial and significant", and should allow parent and child to share one another's interests. Contact during week-days is seen as normal, subject of course to distance and other constraints. And above all, it is the child's interest which is "paramount".
All cases about children are dealt with under the Family Law Act. It does not matter whether the parents are married, in a de facto relationship, or have never lived together. Orders about children can also be sought by others, such as grand-parents or those who have been step-parents.
The fact that children have been exposed to abuse or violence does not mean that they should have no contact with an abusive or violent parent, but it obviously makes finding a suitable contact regime harder. In most cases, the law is that a child is entitled to a relationship with both parents, and the real question is "How much time should a child spend with a parent?"
We often hear a parent say that the child does not want to see the other parent. The courts tend to be rather skeptical about the genuineness of those wishes, and say that it is the residential parent's responsibility to assist with and encourage parent-child contact.
In a mobile society such as Australia today, often a parent will move away, so that regular contact becomes very difficult. The parent with whom a child is living does not have the right to move a child without agreement or a court approval, and courts and lawyers call cases about moves "Relocation cases".
Once again, it is the welfare of the child which is "paramount". Is a planned move in the child's best interests? Just moving and worrying about legal outcomes later can be expensive and risky - courts have ordered children to be brought back to the original area while a decision is made, and have the power to punish a parent who breaches court orders without a good excuse.
How are agreements or decisions made?
There are three ways agreements or decisions are made:
- by a parenting plan,
- by consent orders; or
- by a judicial decision.
A parenting plan is not an enforceable agreement, but if the parties subsequently are in court, the court will have regard to the terms of the parenting plan. Consent orders are obtained by a joint application to the court, without any actual attendances in court. They have the same legal effect as orders made by a judicial decision. They can also be obtained at any stage during court proceedings.
A Judicial decision is obviously the most expensive way of resolving matters, but it takes two to make an agreement! Going to court may be the only available option.
Because no family situations are ever identical, relying on gossip or even past experience can be asking for trouble. If you need advice, guidance or help, the Quinn & Scattini Family Law team is there for you - you can rely on our expertise and experience to put you on the right track.
If you would like to find out how Quinn & Scattini can help you, please call us on 1800 999 LAW (1800 999 529), or email us at email@example.com