The term “custody” is no longer used in the family law system. Instead, the court now deals with who the child “lives with” and
how much time they will “spend with” and “communicate with” the other parent.

The most important factor that the court must consider when deciding who a child lives with is what is in the best interests of the child.

The law is designed from a starting point that every child has a right to know both their parents. Equally, every child has the right to be protected from harm. Unless there are issues with violence or abuse, the law expects that each parent with have equal parental responsibility. This doesn’t mean that each parent gets to spend equal time with the child. Instead, it refers to parents having an equal role in the long term important decisions affecting a child, such as where they go to school, or what medical treatment they receive. Day to day decisions, such as what will the child eat or can the child go to the park to play with friends are decisions left up to the parent with whom the child is spending time on a  day to day basis.

If the child spending equal time with each of parent is reasonably practicable, and in the best interests of the child, then then the court will try and make orders that are consistent with that. However, the reality is that often equal time is not practical, especially with young children because constant changeovers from one parent’s house to another’s causes disruption to the children. If this is something you are considering by agreement, then you should consider an arrangement that results in your child spending blocks of time with each parent(such as one week with you and one week with the other parent). That is likely to be less disruptive than a child having to pack up and move houses between parents every two or three days. There are many other considerations that affect whether equal time is practicable such as how far apart will each parent live? Does one parent have work commitments which make equal time impractical? How well do the parents get along and communicate with one another?

If it is not reasonably practicable for a child to spend equal time with each parent, the next question to decide is whether it is practical for the child to spend substantial and significant time with the other parent. Again, this must be in the best interests of the child.

Arrangements relating to children can come about in different ways. For example,they can be an informal agreement between you and your spouse or partner as to who the children will live with and who they will spend time with. If you can reach an agreement informally, there does not need to be any involvement of the court.

However parties will generally put that agreement in writing and sign it. These informal agreements are known as parenting plans. Parenting plans must be signed by both parents. A parenting plan can also include third parties such as grandparents, if the children are to spend time with those persons as well.

It is very important to remember that a parenting plan is not legally enforceable. Although a court must consider the most recent parenting plan if the matter does get to court (if it is in the best interests of the child to do so) the court does not have to make orders that reflect that plan. If a parent breaches a parenting plan, the court does not have the power to enforce the plan as it does with court orders.

The reality however is that most people cannot reach an informal agreement after separation and an agreement comes about after negotiation once each party has appointed a lawyer. Those agreements are known as consent orders. Once signed, they are lodged with the court for approval and once approved, they become legally enforceable court orders just like any other court order.

In the case where no agreement can be reached, one party will make an application to the court and the court will decide what the parenting orders should be (taking into account the best interests of the child).

It is important to remember that the court requires separating families who have a dispute about children to make a genuine effort to try and reach agreement through family dispute resolution before an application is filed with the court, unless an exemption applies (such as family violence, child abuse or there is an urgent need to file the application).

There are practical benefits of trying to reach an agreement without going to court such as avoiding the stress associated with court proceedings, resolving the dispute quickly and avoiding the costs of a contested court application.

A divorce and a property settlement or parenting orders are not the same thing. You do not need to be divorced to have a property settlement or parenting orders. Property settlement refers to the division of the property assets of the parties after a couple have separated. These decisions can start as soon as the couple separate and are not affected by whether a divorce has been granted. The same applies
 or parenting orders.

A divorce is the formal legal end of the marriage. It is granted by the court and once granted, allows you to remarry. The definition of separation in marriage is a straightforward one. You must have been separated for a continuous period of 12 months before you can apply for a divorce. However, should you and your partner reconcile, then the 12 month period may start again, depending on the length of the reconciliation. If you reconcile for more than 3 months, the 12 month period will start again if you
separate once more.

Sometimes, separation under one roof is the only practical solution for parties. The law understands and allows this as long as the parties can satisfy the court that they were genuinely separated and that there was a genuine breakdown of the marriage.

If there parties were separated but living under one roof, it is a requirement when you file for divorce that you file an affidavit verifying that you were in fact separated under one roof and not living as husband and wife. A third party (usually a family member or close friend) must also provide an affidavit also verifying that the parties were indeed separated but living under one roof.

It can be emotionally devastating for a person if the breakdown of the marriage is caused by the fault of the other person, such as where one person commits an act of infidelity. However, fault is not a factor in whether a divorce is granted by the court.

The court only needs to be satisfied that the marriage has broken down irretrievably. In other words, if the court is satisfied that there is no chance that the parties will reconcile and the parties have been genuinely separated for 12 months, the divorce will be granted.

There are some other steps that the court will take such as ensuring that proper arrangements for the care of children aged under 18 years exist between the parties. Also, couples whose marriage has broken down within 2 years of the marriage are required to attend marriage counselling to discuss or attempt reconciliation before the divorce will be granted.

Fault is also generally not something the law considers when determining a property settlement or parenting issues. You will not get more of the asset pool because your spouse cheated on you. However, in some cases, “fault” can be relevant to what orders the court makes. For example, if separation has been caused by domestic violence, that will certainly be a relevant factor in
determining what is in the best interests of the children when making parenting orders.

Assets that are acquired during a marriage are considered to be joint marital assets, regardless of whose name the asset is held in. There are many reasons why couples may place a property in only one party’s name including for asset protection reasons if one party is self-employed.

Regardless of whose name that asset is held in, the law gives the court the power to adjust ownership of property to ensure that the party who is not the registered owner of that asset gets a just and equitable share of that asset.

In addition, it is not just assets that are acquired during the marriage which form part of the asset pool. Depending on the length of the relationship, assets owned before the marriage can also be treated as joint marital assets and be subject to a property adjustment in the same way. This includes the superannuation  interests held in each of the party’s names.

People are often surprised to learn that assets that are acquired by one party after the date of separation can also form part of the asset pool that is to be split between the parties. This is why it is important for you to finalise a property settlement as quickly as possible after final separation to prevent post separation assets forming part of the pool of assets to be divided between the parties.

Assets that are acquired during a marriage are considered to be joint marital assets, regardless of whose name the asset is held in. There are many reasons why couples may place a property in only one party’s name including for asset protection reasons if one party is self-employed.

Regardless of whose name that asset is held in, the law gives the court the power to adjust ownership of property to ensure that the party who is not the registered owner of that asset gets a just and equitable share of that asset.

In addition, it is not just assets that are acquired during the marriage which form part of the asset pool. Depending on the length of the relationship, assets owned before the marriage can also be treated as joint marital assets and be subject to a property adjustment in the same way. This includes the superannuation interests held in each of the party’s names.

People are often surprised to learn that assets that are acquired by one party after the date of separation can also form part of the asset pool that is to be split between the parties. This is why it is important for you to finalise a property settlement as quickly as possible after final separation to prevent post separation assets forming part of the pool of assets to be divided between the parties.

There are various steps in working out how the property of the marriage will be divided after separation.

First, the value of the assets need to be determined. Sometimes this can be done by agreement and other times a valuation might be required. Secondly, the court will look at the contributions of each of the parties to the marriage. Contributions that are financial and non-financial are both relevant. So for example, if one party worked whilst the other party was a homemaker and cared for the children full time, each of those contributions is relevant. The court does not consider financial contributions any more or less important than homemaking and parenting contributions.

Contributions can also include contributions to specific assets such as your home and may include financial contributions from income or savings to pay the mortgage or the deposit to buy the home, or non-financial contributions such as using your labour and time to undertake repairs, renovations or cleaning and maintaining the property.

Next, we need to look at factors which will impact on each party in the future. The most important of these are the earning capacity of each of the parties into the future and which of the parties has the greater share of responsibility for the care of the children. Naturally, where the children live with one party for long periods and they are young, this will impact upon that parent’s capacity to obtain full time employment.

Lastly, the court considers whether the outcome is “just and equitable” in all of the circumstances. The court’s powers to make property orders are discretionary. This means that although there is an established framework within which the court must work, ultimately there is no strict formula for calculating the property that each party gets. Each case will be assessed on its own facts.

It is not unusual after separation that one party will make the decision to voluntarily move out of the family home, leaving the other party to live there alone or with children.

However, in some cases, both parties will dig their heels in and refuse to move out, even though continuing to live under the same roof results in increasing conflict.

The first thing to remember is that there are no adverse consequences to a party because they moved out of the family home. People often wrongly believe that if they move out, they are giving up their right to the home or the court will give them less of a share in the value of the home because they moved out. Not only is this incorrect but this belief often results in escalating tension and conflict within the home, which can have very negative emotional impacts on each of the parties and in particular on
children.

If each party refuses to move out and the property is jointly owned by the parties, then they each have a right to continue living in the home and neither person is entitled to lock the other party out.

However, the court has the power to grant what is known as an order for “exclusive occupancy” of the family home after an application is made to the court for such an order. These orders are not easy to get because the court takes very seriously the decision to exclude a person from their own home.

However, it is possible to obtain such an order in certain circumstances. The court will consider a number of things including the needs of the children, the means and needs of each of the parties, the hardship caused to each of the parties or to the children and the conduct of the parties.

Importantly, it is not simply a case of convincing the court that it would be better or more peaceful for you to live in the house if the other person was excluded. There must be more and the court will need to be satisfied that it is no longer reasonable or sensible for the parties to continue to live under the same roof. The court must be satisfied that the order is necessary having regard to the physical and emotional needs of the person applying for the order and any children who that person has the care of.

Sometimes when parties separate, one party finds themselves in a situation where they are no longer able to meet their financial needs because they have been reliant on the other party’s income during the relationship. Is there anything that party can do to force their former spouse to financially assist them?

The answer is yes. The law allows the court to make an order for what is known as spousal maintenance. Spousal maintenance is an order requiring a party to a marriage who has a capacity to do so, to financially assist their former spouse if that person cannot meet their own reasonable expenses from their personal income or assets.

Spousal maintenance is separate and distinct from child support. Child support is a payment that one parent makes to the other but which is paid for the benefit of the children to meet costs of raising the children. Spousal maintenance on the other hand is a payment made for the benefit of the spouse.

Child support is payable pursuant to a statutory formula that the Child Support Agency applies. It takes into account various factors including each parent’s income and the number of nights that each parent spends with the children. Spousal maintenance on the other hand is ordered by the court and the court has a discretion when calculating the amount that one party must pay the other party by way of spousal maintenance.

There are numerous factors that the court must consider when deciding whether to order a party to pay spousal maintenance. These include whether the person seeking the order cannot support himself or herself adequately, whether the other party is reasonably able to pay, who has the care of the children, whether a party has an earning capacity which they are not exercising, the age and health of the parties and the assets and financial resources of each party.

Spousal maintenance does not operate indefinitely. In most cases, spousal maintenance is ordered for a short period between the time that parties separate until the property settlement is finalised to allow one party to adequately support him or herself until they receive the proceeds of their share of the assets (although this is not always the case and it can be ordered for longer periods of time). It can be ordered to be paid as periodic payments or as one lump sum.

Separation is a very difficult decision and an emotional time for all involved. You will feel a roller coaster of emotions as you try and navigate your way through what is unfamiliar territory.

It may help if you have a plan to try and resolve issues following separation as quickly as possible. The two checklists on the following pages may help. They cover parenting and property.

Sometimes, a child will express the wish that they do not want to spend time with the other parent, or do not want to spend as much time with that parent as the parent might like. It is well established that the opinion of the children is not the overriding reason to prevent a parent from spending time with their children. It is not for children to decide whether they do or do not want to spend time with their parents.

Instead, the answer to this question will depend on numerous factors, the most important of which will be the reason why thy child is expressing that view.

If, for example, the child is expressing that view because the child is subject to family violence (which includes both physical and verbal violence) or child abuse, this will be a powerful factor in whether the Court determines that the child should not spend time with the other parent because it is not in the child’s best interests to do so. If however the child is expressing that view because a parent is denigrating the other parent regularly in the presence of the child and the child has formed a negative view of the other parent as result, this will not be a legitimate reason for the Court to restrict the other parent’s time with the child.

Contravening Court orders is a very serious matter and so you should not prevent the other parent from spending time with the child unless there are very good reasons for doing so. Our experienced family lawyers can give you advice as to whether you have a reasonable and justifiable basis for doing so.

In some cases, you will require consent and in other cases you will not depending on your specific circumstances.

If you plan to relocate to a new residence that is not a long distance from your existing residence, even though this may be inconvenient for the other parent, if it does not impact on other aspects of the child’s life such as schooling or on the time that the other parent spends with the child, you are unlikely to require the other party’s consent.

However, if you intend to move overseas, interstate or a long distance away, which in turn negatively affects the other parent’s time with the child or which will result in a contravention of Court orders, you will either need the other parent’s consent or an order of the Court before you relocate.

The same test is applied by the Court in relocation cases as is applied in respect of parenting matters generally; is it in the best interests of the child for you to relocate as planned?

What you will need to establish is that the child’s interests and needs will be better met by the relocation. One of the main concerns for the Court is ensuring the child maintains a meaningful relationship with both parents.

The Court will consider all options, and may for example, allow you to relocate and make orders relating to the time the other parent spends with the child or may order that the child instead live with the other parent (and therefore not relocate even though you are relocating) and make orders relating to the time you will spend with the child.

If you do not consent to the other parent taking your child overseas, the other parent will need a Court order to do so (assuming that there are no existing orders in place permitting this).

From a practical point of view, both parties must sign a passport application for a child, so you can simply refuse to sign the application for a passport, which will practically prevent international travel by your child. You can also lodge a Child Alert Request at any Australian Passport Office.

However, in many instances, the child may already have a passport. If you hold a genuine concern that the other parent may take your child overseas without your consent and worse still, relocate overseas permanently with the child, our experienced family lawyers can apply to have your child listed on the Australian Federal Police “airport watch list”.

Once on the list, it will not be possible to remove the child from Australia. If the other parent attempts to leave Australia with the child, the AFP will be notified and the child will be prevented from leaving Australia without a Court order permitting it.

Unless there is an order in place giving you sole parental responsibility for the long term important decisions affecting your child (including schooling), then you will need the consent of the other parent to change your child’s school because parents share responsibility for these decisions.

You are required to consult with the other parent and make a genuine effort to reach a mutual decision in relation to schooling. Sometimes, mediation can assist the parents to reach an agreed position.

If you cannot agree, you can apply to the Court for an order permitting you to enrol the child in the school of your choice. The Court may or may not grant this request and may do so with or without conditions.

In short, no, not unless there is a legitimate reason why doing so would not be in the best interests of the child.

Just because you do not get on well with the other parent’s new partner, does not mean that you can prevent them from spending time with your child. Part of the expectation that parents must focus on the best interests of the child and promote a meaningful relationship with both parents, is that they must recognise the reality that one or both parents may re-partner and promote the relationship with that new partner and the new family unit.

However, there may be circumstances where your concerns are legitimate. For example, where the other parent’s new partner has a history of domestic abuse, is a drug user or is engaging in conduct which exposes your child to abuse, neglect or other harm. Where it can be shown that it is not in the best interests of the child to be in the presence of that person, the Court may make an order preventing that person from spending time with the child or by putting protective measures in place such as supervision orders.

It is important to note that the onus of proving such allegations rests on the parent making them. It will not be enough to simply make such allegations. You must have sufficient evidence to convince the Court that your allegations are true.

The short answer to this question is no. The Family Law Act 1975 does not permit the Court to discriminate against fathers. In reality, mothers often obtain orders that are more favourable because prior to the Court process, the mother was the primary caregiver for the child and therefore the Court deems that it is in the child’s best interests for that primary caregiving relationship to remain in place.

Where the father has had a significant role in the child’s life prior to the Court process, the Court is likely to maintain that involvement, unless it is not in the best interests of the child to do so.

Family dispute resolution is a confidential process whereby a trained Family Dispute Resolution Practitioner independently attempts to help parents navigate disputes and reach agreement on child custody arrangements.

The law requires parents who have a dispute about child custody and related parenting issues to make a genuine effort to try to and reach agreement via family dispute resolution before filing an application for parenting orders in Court.

This requirement applies any parent wanting to file an application with the Court, unless there is a permitted exception. Section 60I(9) of The Family Law Act lists the exceptions to the requirement to attempt family dispute resolution before making an application. Examples of exceptions are:

• where a person is applying for procedural orders, interim orders or consent orders.
• where the matter is urgent.
• if the court has reasonable grounds to believe that:
  • • family violence or child abuse has occurred, or
    • there is a risk of violence or child abuse if there was to be a delay

Unless one of the permitted exemptions applies, a party wishing to apply to the Court must file a certificate from a family dispute resolution practitioner. The certificate is issued under Section 60I of the Family Law Act 1975 and is commonly known as a Section 60I Certificate.

Anything that is said during family dispute resolution conducted by an accredited FDR practitioner, is confidential and is not admissible in any Court proceedings. This allows parents to openly and honestly discuss all issues relevant to the dispute, without the threat that something they say may later be used against them in Court.

Strictly speaking, no. But our experienced child custody lawyers have extensive experience in matters like yours and can give you advice on the best way to achieve the outcomes you are looking for.

We can also provide you with practical advice on how to resolve disputes so as to avoid the stress and cost of the Court process. We work with you to try and resolve your dispute by negotiation, as quickly and as cheaply as possible.

Where an agreement is not possible and Court proceedings are unavoidable, we utilise our extensive experience to present your case to the Court in the best possible way to obtain the orders you seek.

Throughout this process, we treat you with respect, dignity and empathy because we understand just how stressful family law proceedings can be.

The cost will depend on the lawyer you engage. Different lawyers have different hourly rates, depending on their level of experience. Lawyers with the same levels of experience can also charge significantly different hourly rates. More expensive is not necessarily better.

You should ask questions of your lawyer so that you understand exactly what costs will be involved and what their level of experience is, especially in matters similar to yours.

Our family law solicitors have extensive experience in all aspects of family law including child custody matters. We offer an initial free telephone consultation to allow you to ask questions and get to know us a little better.

Every family law matter is different and therefore each matter will have different legal costs depending on the specific circumstances of each case. Matters than can be resolved through negotiation will have much lower costs than those that require court proceedings to be commenced.

Although we don’t provide a guaranteed quote for family law matters, we are able to give you a fee estimate as part of our fee agreement. This estimate is based on a number of factors, including the instructions you provide us about your circumstances and what you are hoping to achieve. This way you have clear, upfront estimates of the costs that you are likely to incur.

Our approach to legal costs is that we provide high quality family law advice as cost effectively as possible. Our aim is to help you avoid the costs of Court proceedings so we focus heavily on a negotiated resolution that still achieves the outcomes that you seek.