What is 'custody'?
The term 'custody' is considered outdated and replaced with the term 'parental responsibility' which refers to all powers in relation to making long-term decisions as to a child's upbringing, religion and education; including making any decisions about major medical procedures and treatments and applying for a passport or visa for the children.
Live with - spend time with
The parent with whom the child is living has the sole decision-making power for matters that are not about the children's long-term welfare unless there is an agreement otherwise.
What are 'live with' and 'spend time with' arrangements?
Equal shared parental responsibility does not mean that the child should live with both parents or spend time with both parents equally. The issues of where children live and who they spend time with are usually referred to as 'live with' or 'spend time with' arrangements.
There is no presumption that parents should have equal time with the children, however a court must consider whether equal time is appropriate if Parenting Orders are made for equal shared parental responsibility. If equal time is not appropriate, then a court must consider 'substantial and significant time' which is legislated to mean weekend time and week time.
A child has the right to have a meaningful relationship with both parents which includes a right to spend time with both parents when this is reasonably practicable in the circumstances.
It must be reasonably practicable and if one parent lives a significant distance away from the child's school it would not be reasonable for the child to spend overnight time with that parent on school nights.
Factors that are relevant in deciding where the child lives and spends time
- The age and maturity of the child.
- The involvement of each parent with the child.
- The relationship of the child with each parent.
- The ability for each parent to provide for the child's needs.
- The child's wishes and wants
- The child's culture; and
- Any issues relating to child abuse and/or family violence.
Parenting plans are not enforceable
A Parenting Plan is a signed agreement between parents. It is not enforceable but may be used as evidence of what the parties agreed if the matter ends up in court in the future.
Consent Orders are enforceable
Consent Orders are Parenting Orders, which are signed by a judge or registrar and which are binding and enforceable.
Applying to the Court - mediation certificate
Before applying to a Court for a judicial determination, parties must attend Family Dispute Resolution and obtain a certificate to show that they have done so unless there is a specific reason why dispute resolution is inappropriate in the circumstances.