How to Get Custody of Your Child

In Australia, the principle of “best interests of the child” is the foundation upon which custody arrangements are considered by the Court. Parents are also encouraged to consider this when deciding on custody arrangements. Rather than focussing on the rights of parents to be involved in their child’s life, the law focusses on what is best for the child. The intention of the law is to ensure that the child is protected from harm and as far as possible, can maintain a meaningful relationship with both parents.

In addition to catering to the best interests of the child, there is also a presumption of “equal shared parental responsibility”. In simpler terms, this means that under Family Law, it is assumed that each parent will have equal responsibility when it comes to taking care of the child and making decisions for the child.

This means that when they are discussing and making custody arrangements, the parents should consider equal responsibility as the default. In addition, if your custody arrangement is considered in Court, this will be the baseline from which the Court will consider your particular circumstances. In the majority of cases, the Court will be satisfied that this presumption is correct and will make orders to that effect.

If both parents have reached a verbal agreement on the custody arrangements for the child, then you should document this in writing. Although the agreement was reached amicably, this only represents the nature of your relationship at a point in time, and there is no guarantee that your relationship will remain amicable in future. Further, verbal agreements are neither legally binding, nor enforceable. Therefore, it is essential that you record the agreement in writing to provide a safety net, should your relationship change in future.

There are 2 key ways to document amicable agreements, either through a parenting plan or through consent orders.

A parenting plan is a written agreement between the parents setting out the structure of the custody arrangement. This approach allows for flexibility and works best in circumstances where the parents require this flexibility.

Parents are encouraged to work together using the court framework of each parent can spend equal time with the child and other considerations for child support to reach an agreement outside of court.

There are no strict guidelines on what should be contained in a parenting plan and it can be as specific or wide as you agree upon. It does not have to account for the long term and can be revised when circumstances change.

Parenting plans will usually cover the following:

• Which parent the child will live with;
• Who the child will spend time with;
• Which parent the child will spend holidays and birthdays with;
• How each parent will financially contribute to the raising of the child; and
• How major decisions about the child will be made.

Parenting plans can get very specific. For example, they may include the parameters around which the parents will communicate with the child’s grandparents, school, and medical practitioners.

A key advantage of documenting the arrangement in a parenting plan is that court attendance is not required. However, as a result, it is important to note that parenting plans are not binding or legally enforceable.

If a dispute arises between parents, then a Court may consider the parenting plan that is currently in place in order to resolve the dispute.

The second option for documenting an agreement around custody arrangements is through consent orders. Consent orders are similar to parenting plans, in that the parents have come to an amicable agreement on the arrangements.

The one key difference is that once the arrangement is considered and approved by the Court court granting consent orders, it becomes legally binding and enforceable under the Family Law Act.

The Family Court will consider the orders and determine whether to grant the consent orders on the basis of what is in the best interests of the child. If the Court is satisfied that the arrangements are in the best interests of the child, then they will formalise this in the consent orders.

If both parents have agreed upon the custody arrangements, then having these arrangements approved by the Court and documented in consent orders provides a level of certainty and security that a parenting plan does not. This is due to the fact that if the consent orders are breached, there will be legal consequences.

If you and the other parent do not agree on custody arrangements, then you can make an application to have the Court decide on the arrangements on your behalf. However, prior to filing an application for parenting orders, you will be required to undertake a number of pre-action procedures. This includes reading the Marriage, families and separation brochure (which can be found here), attending a Family Dispute Resolution Conference and if requiring, providing the other parent with a notice of claim.

Under the Family Law, you must obtain a certificate from a registered family dispute resolution practitioner before an application is filed with the Court. The purpose of this is to encourage early and full disclosure of all relevant information, encouraging the parties to seek realistic and reasonable orders and to help resolve the case quickly.

Relying on a Court to make a decision can be a time consuming and expensive exercise.

There are a number of exceptions to the requirement to attend a Family Dispute Resolution Conference, such as cases that are deemed urgent, cases involving allegations of, or risk of child abuse or family violence and cases where one parent is refusing to negotiate.

If, following participation in a Family Dispute Resolution Conference, you and the other parent do agree on a custody arrangement, then this can be documented in either a parenting plan or consent orders, as discussed earlier. However, if you do not agree, then you will need to provide the other parent with a notice of claim. A notice of claim is a written notice that illustrates the issues of the dispute, the orders that you will be seeking if you do file with the court, a genuine offer to resolve the issues and a nominated time by which the other parent should reply.

Our child custody lawyers will advise you and assist with this process. The other parent must reply to this notice of claim within the specified period, advising whether they accept the offer. If the other parent does accept the offer, then this can be documented in either a parenting plan or consent orders.

If they do not accept the offer, then they must reply stating the issues of the dispute; the orders that they will be seeking and if you do file with the court, a genuine offer to resolve the issues and a date by which the other parent should reply.

At this stage, if an agreement still has not been reached, then you can file an application to have the Court decide. The Court will make parenting orders setting out the compulsory parenting arrangements going forward.

The orders will dictate where the child will live, who the child will spend time with, who has parental responsibility, who can communicate with the child, who will financially support the child and how major decisions will be made about the child.

Sole parental responsibility, which is sometimes known as sole custody refers to an arrangement where one parent can make decisions relating to the child without having to consult the other parent.

As mentioned earlier, the default position of the court is to grant equal shared parental responsibility. Therefore, if you are seeking an order for sole custody, you must present evidence to satisfy the Court that equal shared parental responsibility is not in the best interest of the child.

An example of situation where a court would consider granting sole parental responsibility is where one parent is abusive and puts the child in danger. Here there may be a domestic violence order in place as a part of a court order the court may make an interim child custody order. You will need to present evidence, such as police reports and witness statements to a court to support this claim.

A parenting order is court order. This means that it is binding and legally enforceable. You should take all reasonable steps to comply with the order and this includes encouraging your child to spend time with their other parent, if this is what the order requires. This means that if the order states that the child is to spend every second weekend with their other parent, then you should encourage your child to spend the weekend with them.

A parenting order typically expires once the child turns 18 years old. It may also expire if either parent applies to vary the order and the Court grants a new order in its place.

If you, the other parent, or the child’s circumstances change, then you may need to change the parenting order that is currently in place. If both parents agree on this change, then you can apply to the Court for a new parenting order. In this case, the current order will expire and the new order will replace it.  In some circumstances, you may be able to avoid Court by entering into a parenting plan instead. This agreement would document the agreed changes to the arrangement. It is important to note that the parenting plan will not be binding or legally enforceable. If you decide to proceed down this route, then you should seek legal advice prior to doing so.

If both parents do not agree to this change to the parenting orders, then the first port of call should be family dispute resolution. If this is unsuccessful, then you will need to apply to have the Court consider the circumstances to determine whether the change is required.

No matter what stage you are at in the custody process, we can provide you with meaningful legal advice to ensure that you reach your desired custody arrangement. We understand that this can be a trying time, so we will work with you to provide clarity and guidance along the way. If you would like to speak to one of the expert child custody lawyers at PCL Lawyers, call us on 1300 907 335 or complete an online enquiry form.