Family Law

Child Custody FAQs

Our Family Lawyers Sydney and NSW have answered some frequently asked questions about Child Custody NSW Laws below.

Does shared parental responsibility amount to both parents spending equal time with the child?

This does not necessarily mean each parent gets to spend equal time with their children. However, the amendments to the Family Law Act would ordinarily warrant this to be considered as a starting point in most cases. The practical reality is that these matters are determined on a case by case basis. 

The best interests of the child does involve the child spending meaningful time with both parents, wherever possible, however, this of itself does not mean equal time. Parental responsibility refers to the day to day and long term decisions that are made on behalf of the child. This means that the Court can order shared parental responsibility even when equal time is not requested or ordered. There are different considerations at play when dealing with the two issues and they do not necessarily go hand in hand.

What impact do parents’ attitudes towards parenting and each other have towards parenting agreements/orders?

When determining the "reasonable practicality" of the child spending equal or significant and substantial time with both parents, the Court can take into account the traits of the parents considered in determining what is in the best interests of the child.

The Court explicitly takes into account the behaviour of parents towards each other and towards the child when determining what is in the best interests of the child in constructing parenting orders. Accordingly, the behaviour of parents is relevant and can be important to the outcome of parenting orders, and it is not inconceivable that estranged spouses will take this opportunity to keep scrupulous records of every minor infraction that the other parent makes in relation to parenting.

What about child maintenance/child support?

Child maintenance or child support can be sought either via the Family Court, be agreed upon in a Binding Financial or Termination Agreement or through the Department of Human Services.

We already have an arrangement in place for our children. Why do we need it in writing? 

Sometimes arrangements for the care of children that are informal or ‘verbal’ work quite well. However such arrangements are based on the co-operation of both parties. They are not enforceable and either party can refuse to adhere to the agreement at any stage. If something happens and the relationship sours, such arrangements tend to encounter problems. This is why it is important to have arrangements relating to children put in writing and preferably, recognised by the Court.

How can I get the children to live with me? (sole custody)

Generally, having a child live with only one parent is not considered in the best interests of that child unless the other parent is an unfit parent and/or there is a risk of violence.

This does not mean that where one parent has had very little to do with a child that they will immediately be able to have that child spend time overnight with them, but it does mean that the court generally considers it in the best interest of a child to spend significant time with both parents.

Remember that having the Court decide the care arrangements for your children should always be the last resort. Arrangements for the care of your children can usually be reached through negotiation and/or mediation and these approaches will allow you to express your concerns regarding the length of time and manner in which your child spends time with the other parent.

The current arrangements/orders for the care of my children aren’t working/ are no longer appropriate. What can I do?

If you do not presently have orders in place in relation to the care of your children, now may be the ideal time to negotiate a new regime and have it endorsed by the court.

If you presently have orders in place and they are no longer appropriate (in the best interests of your children) you may have avenues available to you to seek an amendment of the orders. The principles that are applied in determining whether to amend the orders remain aimed at ensuring that the best interests of the children are met. It is important to realise that where orders have been in place for a long time and it appears that it meets the interests of the children, there will be a need to demonstrate why deviation from the status quo at this stage is in the best interests of the children.

The other parent isn’t adhering to the arrangement. What can I do?

Unfortunately, where you have an informal agreement with the other parent, it is not enforceable. It is based purely on the co-operation of both parties, and when this co-operation breaks down, often either or both parties cease to act in accordance with the agreement.

Where you have an informal agreement that just isn’t working due to the other parent’s behaviour, it may be an ideal time to consider getting a formal agreement in place. Remember that going to court does not always mean a contested ‘battle’. If you successfully come to an agreement with the other parent Consent Orders may be sought from the court. These are just as enforceable as the orders that will be made at the end of a contested hearing, but are generally much less expensive and time consuming to obtain.

The parent who the child lives with wants to move with my children. What can I do?

For a variety of reasons, it is not unusual for one parent to wish to relocate after the breakdown of a relationship. However, difficulties often arise when the children live with that parent and the relocation will cause significant difficulty for the other parent to spend time with the children.

There are a variety of options available to resolve the problems that relocation may cause in relation to the non-relocating parent spending time with and communicating with the children.  If one parent has unilaterally moved with the children, the non-relocating parent may initiate a ‘recovery’ application seeking that the court order the return of the parent and the children.

Similarly, where there are orders already in place and the relocating parent is contravening those orders by relocating, the other parent may initiate a Contravention Application. Alternatively, amendment of the existing orders may be sought if it appears that the existing orders will no longer give effect to the best interests of the children in light of the relocation.

We have orders in place but the other parent isn’t adhering to them. What can I do?

After all the time and effort spent on obtaining orders in relation to the care of children, it can be extremely stressful if those simply aren’t followed by either parent. Where a parent contravenes court orders in relation to the care of the children, the other parent may initiate a Contravention Application. The aim of such an application is enforce the present orders, and, where appropriate and necessary, to impose some sanction on the contravening parent.

However, if there is something fundamentally impractical in the orders, and they are simply too difficult to adhere to, it could be that the existing orders no longer serve the best interests of the children. In this event, it may be that filing an application at court for amendment of the existing orders would be an appropriate approach to resolve the problem.

Remember that going to court does not always mean a contested ‘battle’. If you successfully come to an agreement with the other parent Consent Orders may be sought from the Court. These are just as enforceable as the orders that will be made at the end of a contested hearing, but are generally much less expensive and time consuming to obtain.

The other parent hasn’t had much to do with my child and they want to spend time with the child, including overnight. What can I do?

It is not uncommon for a parent to take a considerable period of time to decide to take an active part in their child’s life. It has been our experience that often these scenarios are extremely emotional, and feelings of protectiveness, resentment and anger are common from the parent who has lived with the child up until that point.

Essentially, the Court considers as a starting point that in most cases, the best interests of the child involves both parents having meaningful shared input into major decisions that affect the child. As the primary concern of the Court is to promote the best interests of the child, the Court must give effect to this unless doing so would expose the child to family violence or a risk of harm to the child. So where a previously uninvolved parent decides to become involved in a child’s life, if it is in the best interests of the child, the court is likely to encourage such involvement.

Often the conflict arises around whether the child should spend lengthy (overnight) periods of time with the other parent. There are various options available in this situation such as slowly increasing the time once familiarity and comfort have been established with the child. Other options include the child beginning to spend supervised time with the parent as a starting point.

At Prime Lawyers we are experienced in dealing with child custody cases. Whether you are considering commencing child custody proceedings, or proceedings have been issued against you there is an array of issues you need to consider. Child custody ‘battles’ can be a complex and emotional process. Our lawyers strive to make this process as simple as possible.

If you require assistance with a child custody matter or parenting dispute, our experts at Prime Lawyers - Family Law Division can help. Contact us to make an appointment with a family lawyer at your nearest Prime Lawyers office. 

We have offices in Sydney, Parramatta, Chatswood, Sutherland and Wollongong.    

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