How parental responsibility and “custody” of a child is resolved after a break-up

In Australia, there is a presumption under the Family Law Act 1975 (Cth) for equal shared parental responsibility of a child under 18 years of age. Parental responsibility refers to the care, welfare and development of a child. This can encompass a range of things including where a child will live and when, where they will go to school, medical decisions, time with extended family members and how they will celebrate special events such as holidays and birthdays. When a former couple ends their relationship, a major consideration for those with a child is how much parental responsibility they will now have and particularly the amount of time they will spend with their child.

There is no requirement for former partners to have a Court make this decision for them. Parents of a child who are no longer in a relationship reserve the liberty to decide among themselves the parental responsibility they will each have for their child. Unfortunately, when a relationship between adults has dissolved, many times the ability to effectively communicate and negotiate is compromised. This can be further complicated where there may be allegations of abuse, mental health concerns, children with special needs or where one parent wants to relocate (whether it be locally, interstate or overseas). The legislative framework and extensive case law surrounding the issue of children can be difficult to interpret and apply.

Family lawyers can help parents navigate the law in order to reach an agreement that is desirable and appropriate for their circumstances. Engaging a family lawyer can also assist parents in avoiding formal Court Orders regarding the parental responsibilities of each party. Issuing proceedings in either the Family Court or Federal Circuit Court of Australia can be extremely expensive, stressful and time consuming. It is a legislative requirement that the legal system is used as a last resort.

With the assistance of a professional family lawyer, parents can reach an agreement regarding their respective parental responsibility without the need of Court intervention. This agreement can either be informal, where parties can negotiate with each other about future arrangements and change their agreement should the need arise, or registered with the Court so the agreement is legally binding. The latter is undertaken by the filing of Consent Orders.

In a situation where parents cannot agree on their shared responsibilities, a family lawyer is usually the best person to appear on behalf of a party in Court. Although parties are entitled to represent themselves, due to the complexity and nuances of family law, a family lawyer can provide advice and guide a client towards the best result. This is true in most areas of law, however it is heightened in family law proceedings as they are usually emotionally charged (particularly where children are involved) and it can be difficult for a party representing themselves to perform objectively in court.