Introduction
Under the Australian Family Law regime, if the de facto relationship, or marriage, or even ordinary relationship bears a child or children, the parents of the child or children are entitled to have their rights ascertained in accordance with the family law act. The Brightstone Family Law team takes a comprehensive and diverse approach to ensure that every client understands the entire process. Whether the situation appears straightforward or complex, we aim to assist you and help you plan for your future.
Custody as a conveyor doesn’t exist in Australia
In Australia, custody as a general concept doesn’t exist. What applies are two concurrent rights, namely:
1) right of primary care ie with whom the child lives; and
2) right of decision-making, mainly regarding medical issues, education, cultural and religious issues, and international travels.
The family Lawyer system has a preference for the parents to both have significant time spent with the child(ren); and for the parents to have equal and shared decision-making rights. However, this preference could change based on circumstances of the family. For example, the court would not force a parent to see the child more often if s/he doesn’t wish to do so; the court would also not force the parents to have joint decision-making rights if the parents are known to be acrimonious, and would engage in conflicts intentionally due to personal differences – in which case the court would favour one parent over the other.
4 Key Aspects of Care and Decision Rights
There are generally four ways in which these two types of rights interact and manifest in practice.
The first way is equal care, in which case each parent generally gets 7 days a fortnight, and have equal shared decision making rights.
The second way is for one parent to spend a block of time with the child every fortnight (could be anywhere between 2 to even 6 nights). In this case, decision making rights will likely still be shared as there parents are still active players in the child(ren)’s upbringing.
The third way is for one parent to spend time with the child(ren) once in a blue moon Ie monthly, quarterly, half yearly even. This could either be due to the parents living very far apart (different cities or countries), or because the non resident parent doesn’t wish to see the child as that often. In these circumstances, decision making rights could still be shared in the former situation, but likely not be so if the latter situation.
The final way is for one parent to not have any fixed or routine spend-time regime with the child(ren) ie extremely adhoc and infrequent. If this is the case, decision making rights would befall the hands of the nonresident parent.
There above outcomes could either be negotiated, or be adjudicated by the court.
Hope the court makes its decisions
Parenting matters after heard by the Federal Circuit Court and Family Court of Australia.
They court, in determining the above, primarily considers what’s in the best interests of the child(ren). This means that the court does not look at the issue from the perspectives of any of the parents.
In addition to each parents’ evidence, the court priestly relies on a family report when considering its decisions.
Rights regarding child(ren) after not limited to biological parents
Rights of primary care and decision making rights are also not exclusive domains of the parents. Step parents, grand parents and even surrogate parents frequently find themselves in court fighting for primary care and decision making rights.
Case Analysis
Let’s now consider a practical example:
- Tom and Mary are dating, but are not living together
- Tom and Mary have one child, Michael (11 years of age), and another child, Steven (4 years of age)
- Tom lives in Sydney, while Mary just recently moved to Canberra
- The children have grown up in Sydney, and Michael has significant social tie to his local school and community
- Tom and Mary are now in dispute as to who should be the primary carer of the children, and how time is to be spent with the other parent.
- Neither Tom nor Mary have significant issue(s) of violence of parental neglect.
Family Lawyer Scenario Analysis
In these circumstances, and despite Tom and Mary not being in a married or de facto relationship, the Family Law regime would still apply by virtue of their children.
This scenario is a typical, and generally unfortunate and tricky situation. This is because both parents want to have parental care of the children, and are willing and ready to care for the children. While the Court generally favour this, the Court would not give them equal time in this scenario because they are too far apart.
As mentioned above, parenting rights cases are viewed from the children’s perspectives, not the parents. In this set of scenario, the Court would place significant weight in the following factors:
- Both parents are suitable carers i.e. the Court would be satisfied with either parent being the primary carer;
- The children have grown up in Sydney and have significant attachment to Sydney, especially Michael;
- The children should not be split up;
- Michael’s view (since Steven is too young to voice any tangible opinions).
In the circumstances, the Court would likely defer to the child expert to prepare a report, which will address the above concerns. Unless there are extraordinary circumstances, it is likely for the Court to make the following orders:
- Tom should have primary parenting responsibility to care for Michael and Steven;
- Tom and Mary are both to have parental rights to make decisions for Michael and Steven;
- Michael and Steven will likely see Mary once every 2 weeks, likely from Friday night to Sunday night. The location of the meeting could either be in Sydney (i.e. Mary has to travel), or in Canberra (i.e. the children may need to travel), or alternating between Canberra and Sydney every fortnightly cycle.
- School holidays and special occasions will likely to be shared, and alternating.
As could be observed, in determining parenting rights, the Court may not necessarily consider the parents’ own reasons or circumstances (such as why Mary moved to Canberra), unless these circumstances relate to their capacity to parent the children (for example, family violence, drug use, criminal activities, poorly-managed mental health conditions etc).
Hence, this example reflects the notion that the Family Law regime in Australia is child-focused, and parents whose relationship/marriage have broken should account for this mindset accordingly.
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