Our experienced family lawyer answers some common questions from parents seeking guidance in negotiating arrangements for their children. Parents who may have recently separated often feel they don’t know where to start with sorting out arrangements for the children, some are in the middle of those discussions and need some guidance navigating legal terms and this difficult area of law.
What rights are there in family law? What are my rights as a parent?
Children are often said to have rights under the Family Law Act, such as the right to a meaningful relationship with both parents. This comes from the law stating that the Court should decide a dispute about the children’s arrangements according to what is in the best interest of the child. When deciding what is in the best interest of a child, the law says that the primary considerations are;
- the benefit to the child of having a meaningful relationship with both of the child’s parents; and
- the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
There is no provision for “parent’s rights” in parenting or child custody disputes in the law. The law is child focused.
What is child custody?
In today’s legal terms, you are seeking an Order that your child lives with you.
The law in Australia has moved on from using the words child “custody” and “access”, we now use the terms “live with” and “spend time with” when making Orders about the children’s time with their parents. While child custody is no longer the language used in courts in Australia, people still refer to parenting disputes as child custody disputes as they are familiar with the older language.
Often parents who seek custody of their child are seeking an Order that the child live with them for the majority of the time. Access to a child is expressed as a child spending time with the other parent.
What is parental responsibility?
Each parent naturally has parental responsibility unless a Court Order is made about parental responsibility.
This is different from custody or where the child lives with one parent. Parental responsibility means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children. This isn’t about the day-to-day decisions for a child but about making major, long term decisions for a child. Some examples are decisions about their education, religion and religious upbringing and major health decisions.
It is not automatic that where the children live with one parent, that parent with “custody” has sole decision-making power in those matters. The Court presumes that it is in the best interest of the child for the parents to have equal shared parental responsibility, unless there are reasonable grounds to believe that a parent has engaged in abuse of a child or family violence. The Court can Order that one parent has sole parental responsibility.