The Court looks at two important factors when deciding arrangements for children. The first decision relates to ‘parental responsibility’. The second is deciding what day to day care arrangements the court believes will be in the children’s best interests.
‘Equal Shared Parental Responsibility’
The Family Court operates on a (rebuttable) presumption that both parents ought to have equal responsibility for decisions relating to their children. Parental responsibility is not about where the children live or the ‘custody’ arrangements that should apply to them. It refers to long-term decisions like those pertaining to health, religion, education, the child’s name and the child’s place of residence.
The presumption can be rebutted, such as in cases where family violence or child abuse has occurred, or cases where it would not be in the child’s best interests.
“Sole Custody” and equal time arrangements
The Family Court expresses ‘custody’ in terms of the day to day care arrangements for children, that is, what time the child will spend with each parent.
It is unusual for one parent to be given ‘sole custody’ in the sense of having sole care of the child such that the other parent does not see the child at all. Typically, orders are made which see the child spending time with both parents, with the particulars depending on the circumstances of each case.
Orders can be made for children to have equal time with each of their parents, but the court has to find that this arrangement would be reasonably practicable and otherwise in the children’s best interests. For example, a court might consider how far apart the parents live from each other, and their capacity to communicate with each other.
Ultimately, the Court is allowed to consider any matter that it thinks relevant in determining whether an equal time arrangement is appropriate, and if not, what arrangement might work best, and it is up to the parties to present the evidence they have available to support their respective positions.
The Court is also directed to consider Section 60CC of the Family Law Act in determining what arrangements are most suitable in the circumstances. Section 60CC lists a number of factors for the court to consider in determining what arrangement might be in the child’s best interest.
Family Dispute Resolution
Family Dispute Resolution is a process in which separated parties participate in mediation in an effort to resolves the issues between them with the assistance of a mediator, known as a ‘Family Dispute Resolution Practitioner’.
The Family Law Act requires parties in parenting matters to attempt FDR before making a Court application.
Exemptions from participating in FDR can be obtained in certain circumstances, such as in cases of urgency, or where there has been child abuse or family violence.