What is child custody?
Child custody is a legal term referring to the living and parenting arrangements of a child. The child may or may not have any contact or spend time with the other parent depending on the circumstances. In Australia, the Court will not make a child custody order. Instead, it will make a ‘live with’ order and it will also consider if the parents should have shared decision-making power for long term issues or whether one parent should have sole decision-making power for one or more issues.
What is joint decision making formally referred to as equal shared parental responsibility?
Until recently the court made orders for equal shared parental responsibility requiring parents to jointly make major long-term decisions relating to a child. For example, what school they attend, in what locality they live, what surname they use and what medical treatment they receive. The court no longer makes orders referred to as equal shared parental responsibility. If the court is inclined to make an order for both parents to be involved in major long-term decisions it will make an order for joint decision making. There is no longer a need to show that the decision was made with the consent of the other parent but only that they were consulted. How the court will interpret the word consulted remains to be seen.
Is equal time always appropriate?
Equal time is not always in the best interest of the child. Until recently it was the starting point however the law has changed and there is no longer a presumption for equal time. The starting point is looking at what is in the best interest of the child. Example of what should be considered is the age of the child, the needs of the child, how well the parents relate to each other after separation and any risk that the child may be exposed to. Every family is different, and the law is recognising that there should not be a presumption that equal time arrangement should be the starting point.
Is there a limitation period to make an application for Parenting Orders?
There are no limitation periods that will prevent you from making an application to the Federal Circuit and Family Court of Australia for parenting orders.
What is a Section 65DAAA hearing?
Section 65DAAA of the Family Law Act provides that in the event that the court has already made parenting orders some time ago and your application is that all or some of those orders be set aside, you will need to provide evidence that there has been a significant change of circumstances since the orders were made.
If there are existing orders in place, the court may have a discreet hearing at the commencement of the matter to determine if there has been a change of circumstance or fact.
What is a Child Impact Report?
It is a short report and not as comprehensive as a Family Report outlined below. It is often ordered at the beginning of proceedings. It provides information to the court about the character of the parties, what they are each wanting to achieve by the proceedings, the nature of the children and their relationship with each of the parties. The interviews for the report are usually conducted at the Federal Circuit and Family Court of Australia in either Newcastle, Sydney or the registry in a major city closest to where the children live. The family lawyer representing you is not able to attend the report interview.
What is a Family Report?
This is a report ordered by the court where there is a dispute about parenting arrangements. The family report is a more in-depth report than the Child Impact Report. The family report writer is usually a social worker or psychologist.
All parties, including stepparents and the children, are interviewed. Both of the parents and the children are observed together and the report writer will usually comment on the interaction.
Anything said during the family report interviews are not confidential. Any recommendation made by the family report writer is not binding on the Court. If your matter proceeds to a final hearing, then the family report writer will be cross-examined on any recommendations made by them.
This report is often done at the Federal Circuit and Family Court of Australia in Newcastle, Sydney or Family Courts in major cities closest to where the children live. The family lawyer representing you in the proceedings will not be able to attend with you for your interview.
A family report will usually make a recommendation about the parenting dispute. In particular, it will make a recommendation about shared or sole decision-making power and the time that the children should spend with each of the parents or other applicants. In some instances, reports can be neutral concluding that a child’s best interest will be equally well served by the proposal of either of the parties to the dispute.