How Do I Get Custody Of My Children?

When it comes to child custody or ‘parental responsibility’ once there has been a breakdown of a relationship, navigating Australia’s Family Law framework can become overwhelming very quickly. When discussions are underway as to the care of children, parties can be highly emotional considering that life as they know it has completely changed. When children get caught in the crossfires of their parent’s separation or divorce, it all becomes profoundly more intense.

The most beneficial outcomes of parenting disputes are achieved when the parties can adjust their mindset to work collaboratively towards putting the best interest of the children first. This, of course, is easier said than done because more often than not, there are feelings of resentment, hurt and anger. While lawyers play a critical role in assisting parties navigate the legal processes, it is ultimately incumbent upon all the parties to work together toward an agreement that places the needs and safety of the children first.

The Family Law Act 1975 (NSW) (‘Family Law Act’) in relation to parenting matters, is largely focused on parental responsibility and the ‘best interests of the child’ doctrine. Australia, in recent years, has moved away from the term ‘custody’ and now incorporates more child focused and collaborative language such as ‘parenting’, and ‘living and spend-time’ arrangements.

Here’s a guide to help you understand the process and what to expect when seeking living arrangements of your children in NSW.

A. Understanding Parental Responsibility vs. Living Arrangements

It’s essential to clarify the distinction between ‘parental responsibility’ and living arrangements.

• Parental responsibility refers to the responsibility that parents carry in relation to the major decisions that impact a child’s life in relation to their welfare, education, health care, and religious upbringing.
• Living arrangements relates to who the children live with and how much time they spend with each parent.

In most cases, the law encourages shared parental responsibility, which means that both parents continue to make major decisions jointly, even if the children primarily live with one parent. An important distinction to be made here is that shared parental responsibility does not mean equal time/living arrangements. In recent legislative reform, Parliament repealed the previous s 61DA of the Family Law Act which contained a presumption of equal shared parental responsibility because it was being commonly misunderstood as ‘creating a right’ to equal time arrangements. The Family Law Act, as amended, now makes this distinction apparent, providing clearer guidelines as to how parental responsibility is allocated to each party in terms of sole or joint decision making on major long term issues of the child.

Legal One lawyers in Auburn, Liverpool, Cabramatta, Fairfield, and Blacktown can assist you with child custody matters.

B. What Is in the Best Interests of the Child?

Australian Government Attorney General’s Department, ‘Family Law Changes from May 2024’ (Fact Sheet) 1, 2 < https://www.ag.gov.au/sites/default/files/2024-06/family-law-amendment-act-2023-factsheet-for-professionals.PDF>.

[The Family Law Act 1975 (NSW) Part VII, Div 2 (‘Family Law Act’).

The Family Law Act emphasises that any living arrangements must be made in the best interests of the child. This is the court’s primary concern when determining parenting orders.[1]

Factors that are considered include:

• The benefit of the child having a meaningful relationship with both parents.
• Protecting the child from harm, neglect, or abuse.
• The wishes of the child, depending on their age and maturity.
• The capacity of each parent to provide for the child’s needs.
• The impact of changes in the child’s circumstances, including separation from siblings.

The Court will ensure that their approach is child-focused, and the needs of the child are prioritised.

C. Reaching an Agreement Without Going to Court

Whenever possible, parents are encouraged to reach an agreement about living and care arrangements without the need to go to court. In the instances that the parties are amicable, this can be done informally with direct negotiation between the parties.  If the parties require direction and support, agreements can be navigated through a more formal process such as mediation. Mediation involves an impartial third-party helping parents discuss and agree on the best arrangements for their children. It can be done with the assistant of legal representatives or without, with a privately funded mediator or through a cost-effective service such as Relationships Australia. There is no right or wrong way. Each situation needs to be tailored to accommodate the unique set of circumstances.

In NSW, you can access Family Dispute Resolution (‘FDR’) services to assist with mediation. In fact, before making an application to the Federal Circuit and Family Court of Australia, parents are required to attend FDR unless certain exemptions apply (e.g., family violence or urgent cases).

If an agreement is reached, it can be made legally binding through an Application for Consent Order with accompanying proposed Consent Orders which are lodged with the Court for their approval. Consent orders set out the terms of the parenting arrangements and have the same legal effect as orders made by a judge.

D. Going to Court: Applying for Parenting Orders

If mediation fails or isn’t suitable, you can apply to the Court for parenting orders. Parenting orders cover a wide range of issues, including who the child will live with, how much time they will spend with each parent, and how decisions about the child’s upbringing will be made. Orders should be comprehensive and include, inter alia, who the child will spend holidays and special occasions with, national and international travel, communication, medical decisions etc. Often parenting orders will say something to the effect of ‘…as agreed between the parties, and in the absence of agreement the following shall apply’. This promotes flexibility for parents to make joint decisions but have the orders in place as a fallback position so that any foreseeable conflict in the future can be avoided.

Here’s a breakdown of the steps involved in the unfortunate instance that a matter proceeds to Court:

Step 1: Filing an Application

You’ll need to file an application for parenting orders. Alongside this application, you should submit an affidavit detailing your desired living arrangement for the children and why it’s in the children’s best interests. Your application will include your proposed orders both on an interim and final basis and will also include a Notice of Risk. Submitting a Notice of Risk is mandatory. It is a document which essentially sets out whether the parties consider that either themselves or the children have been, are at the risk of being, subjected to or exposed to abuse, neglect or family violence. This fulfils the courts responsibilities under s 69ZQ(1)(aa) of the Family Law Act. Should any allegations of abuse, neglect or family violence be contained in this form, the Court has a mandatory obligation to report such information to child welfare authorities under ss 67Z and 67ZBA of the Family Law Act.

Step 2: Court Proceedings

The Court will assess your case through a series of hearings. Both parents will present evidence, and the judge may also consider expert reports from family consultants, psychologists, or social workers to assess the children’s relationships with their parents and whether there are any risks that need to be addressed and mitigated.

The court can issue interim orders if temporary arrangements are needed until the final decision is made. These interim orders might cover where the child lives during the proceedings and how much time they spend with each parent.

Step 3: Final Orders

Once all evidence is presented, the court will issue final parenting orders.[1] These orders are legally binding, and failing to follow them can result in penalties.

The court may also order that parents attend parenting programs or counselling to help manage the co-parenting relationship and improve communication.

E: Factors That May Impact Decisions Relating to Living Arrangements

While the Family Law Act aims to encourage co-parenting and shared responsibility, several factors may influence how living arrangements are decided. These include:

• Family violence or child abuse: If there is a history of violence, this will weigh heavily in the court’s decision-making, and protective measures may be put in place to safeguard the child.
• The child’s relationship with each parent: If one parent has been the primary caregiver or if there are issues of estrangement, the court may favour an arrangement that reflects the child’s current attachments.
• Practical considerations: The court will assess factors like the proximity of each parent’s home to the child’s school, the parent’s work schedules, and their ability to care for the child full-time.

F: Grandparents and Third Parties

Under Australian family law, it’s not just parents who can apply for custody or visitation rights. Grandparents and other third parties, such as stepparents or relatives, can also apply for parenting orders if they have a significant role in the child’s life and believe it is in the child’s best interests for them to be involved.

G: Changing Parenting Orders

Although parenting orders aren’t set in stone, they are final and often changing them can be difficult. It is best if any changes are made with consent, otherwise a party will need to prove a significant change in circumstances, such as one parent moving interstate or a change in the child’s needs, to vary the existing orders. The element for requiring a significant change in circumstances was exemplified in the leading case of Rice v Asplund where Chief Justice Evatt said:

‘[The court] should not lightly entertain an application … To do so would be to invite endless litigation for change is an ever-present factor in human affairs … there must be evidence of a significant change in circumstances’.

This is now known as the ‘Rice v Asplund’ rule which was created to protect the integrity of agreed parenting arrangements but more particularly, to protect the child from the uncertainty of protracted litigation.

If you are seeking the services of a family lawyer in Parramatta, Blacktown, Fairfield, Liverpool, or Bankstown, Legal One is here to help you with child custody matters.

Conclusion

Negotiating parental responsibility and living arrangements of your children in NSW can be a challenging and emotional process, but it’s important to remember that the law is designed to protect the best interests of the child. Whenever possible, aim to resolve disputes outside of court through mediation or family dispute resolution. However, if court intervention is required, understanding the process and seeking legal advice can help ensure that you achieve a fair outcome for both you and your children.

At Legal One, our family lawyers in Sydney are compassionate and understand the difficult and emotional road ahead. They understand that each situation is unique. They promote dispute resolution and cost-effective expedient resolution where possible. If you’re unsure where to start, consulting with a family lawyer in our firm can provide you with tailored advice and guidance through the process.

Information contained in this article is current as of 21 October 2024

– Written by Valentina Tahmizian and Elizabeth Zouein