Parenting Arrangements

“Custody” is an old (now largely defunct) legal term used in Australian family law to identify which parent a child primarily lived with after separation, with that parent accordingly having “automatic” responsibility for making major decisions regarding his/her care and development. Previously, these issues would almost inevitably go “hand in hand”.

However, the correct (and simplified) terminology now concerns which parent has “parental responsibility” for a child (i.e., responsibility for making decisions about the child’s long-term care, welfare, and development); and which parent a child “lives with” or “spends time with”.

Although still used in common parlance (and throughout the balance of this article) it is important to note that in Family Court documents the modern and correct terminology for “custody” is reflected in such phrases as “sole/equal parental responsibility”; “primary caregiver” or “parent with residence”.

“Custody” in a legal sense relates to having the protective care or guardianship for someone.

In the context of family law, “having custody” clarified – at a very basic level – who had effective “control” over children post-separation.

The concept encapsulated not only with whom children predominantly lived, but who made decisions concerning their education, health, cultural or religious upbringing, etc.

Subsequent changes to the Family Law Act 1975 (Cth) (“the Act”) (and similarly adopted in the Family Court Act 1997 (WA) introduced a cultural (as well as legal) change in that there now applies an initial presumption that it is in a child’s best interests for both parents to have “Equal Shared Parental Responsibility”, meaning that all decisions affecting their child’s long-term care, welfare and development are made jointly, after discussion/negotiation.

If this presumption is found to apply, the Court must then consider whether spending “Equal Time” with both parents is in the child’s best interests and, if not, the extent to which “Substantial and Significant Time” should be ordered with respect to the parent without primary care. 

Where a child is alleged or considered to be “at risk” in the care of one parent, the other parent may seek what was previously referred to as “sole custody”, which confers upon them primary or sole care and exclusive responsibility for making long-term decisions about the child.

Such an arrangement would inevitably restrict the amount of time the other parent spends with the child, and limit their ability to be involved in meaningful decision-making regarding the child’s health, education, etc.

Under Australian family law, parents, technically speaking, have no “custodial rights”.

In fact, under the Family Law Act (Cth) it is the children who have the rights – principally, the right to know and be cared for by both parents (and have a meaningful relationship with them), provided it is safe and, in the children’s, best interests for this to occur.

That said, the Family Law Act supports both parents playing a significant role in their child’s life, provided there are no risk issues present (for example, family violence, child abuse or illicit drug use).  These rights are mirrored in the Family Court Act 1997 (WA) which provides similar rights and creates equivalent obligations concerning children of de facto couples in Western Australia.

A “custody agreement” – now properly referred to as a “parenting agreement” – will need to primarily promote what is in the child’s best interests (the paramount consideration under the Act).  Generally speaking, a parenting agreement will contain provisions regarding:

• who has parental responsibility for the child (in many cases this will be both parents);
• with which party the child will primarily reside or “live” and when he/she will spend time with the “non-resident” parent.  Alternatively, if a child is to spend equal time with both parents, the agreement needs to clearly set out how this will occur (e.g., “week-about”);
• the time the child spends with each parent during school holiday periods;
• the time the child spends with each parent on special occasions such as his/her (or his/her parents’ or siblings’) birthdays, Easter, and Christmas;
• where and how “handovers” will occur;
• the frequency of telephone or electronic communication (increasingly, FaceTime or Messenger) with the child when he/she is in the other parent’s care;
• mutual requirements to keep the other informed and notified of any health or medical appointments/illnesses/diagnoses/information and treatment pertaining to the child whilst in each parent’s care;
• written signed Authorities enabling each parent to liaise directly with, or attend, the child’s school as appropriate/necessary, and for the dissemination of information from the school to each parent individually; and
• provisions regarding each party’s proposed international, interstate, and intra-state travel with the child (e.g., appropriate written notice, provision of consent, accommodation arrangements, scheduled itinerary, and communication whilst away).

The first step in establishing custody (i.e., formal, enforceable parenting arrangements providing primary caring responsibility for a child) is to try to reach agreement with the other parent.

This can be achieved in a variety of ways – e.g., via discussions directly between the parents; through attendance at Family Dispute Resolution (“FDR”) prior to filing an Application at the Family Court (unless certain circumstances apply, such as family violence or the matter is urgent).

If agreement can be reached with the other parent about “custody” of the child, this can be reflected in either a clear, executed Parenting Plan (see our Article dated 12 July 2019) or Consent Orders made at the Family Court.

Although Parenting Plans (unlike Court Orders) are not enforceable they can often provide more flexibility and tend to work best between parents who are still on a reasonably amicable footing after separation, or where each parent’s working commitments are not “set in stone” and complying with the “rigidity” of Orders is troublesome.

Please be aware, however, that a Parenting Plan entered subsequent to existing Orders can in certain cases have the effect of over-riding or taking precedence to such Orders.

If agreement cannot be reached with the other parent, the Family Court will be tasked with making a decision as to which party the child will primarily reside with, and the extent to which the other party will spend time with and/or communicate with the child.

In considering the parenting arrangements for a child, the Court needs to determine what is in the child’s best interests.

Such a determination involves two primary considerations: 

• the benefit to the child of having a meaningful relationship with both parents; and
• the need to protect the child from harm (physical, emotional, or psychological).

Where the Court considers there is a need to protect the child from harm (or the risk of harm) this will always take precedence over the benefit of the child’s maintaining a relationship with the other parent.

There are also additional considerations the Court will take into account, such as:

• the views of the child (if age appropriate);
• the nature of the child’s relationship with each parent;
• the extent to which each parent has demonstrated an interest or involvement in the child’s life;
• the extent to which each party has fulfilled (or failed to fulfil) their parental obligations to the child;
• the likely effect on the child of any changes in their day-to-day living arrangements; and
• any potential increase in the difficulty in the child communicating with the other parent,

all of which issues (amongst others) could impact – either for better or for worse – the child’s right to maintain a relationship with each of their parents.

Where parties cannot agree on parenting arrangements for the child and have completed Family Dispute Resolution (unless deemed inappropriate or the matter is otherwise urgent) either parent can apply for Parenting Orders from the Family Court.

To apply for parenting orders, you will need to file the following documents:

• a Form 1 Initiating Application intimating both the Interim and Final Orders you are seeking;
• a “pro forma” Case Information Affidavit setting out the facts and circumstances upon which you are relying in support of the orders you are seeking the Court make (your evidence);
• a Certificate issued by a Family Dispute Resolution Practitioner evidencing the parties’ participation in FDR (or the requisite Exemption Form); and
• a copy of the child’s Birth Certificate.

The Family Court of Western Australia accepts documents lodged in person, by post or alternatively by electronic lodgement on the eCourts Portal of Western Australia.

In recent years electronic filing has become by far the most commonly used method of lodging documents.

If you are seeking a Custody Order with respect to a child who is not biologically yours (e.g., your grandchild, niece/nephew, or stepchild) you will need to undertake precisely the same process as a natural parent.

This will involve firstly attempting to reach an agreement with the child’s natural parents, and then engaging in Family Dispute Resolution.

If no agreement can be reached between the natural parents, the only remaining route is to apply to the Family Court for Parental Responsibility/ Care Orders in relation to the child.

The legislation specifically states that parents, grandparents, or anyone concerned with the care, welfare and development of a child can apply for Parenting Orders from the Court.

However, in order for your Application to be adequately considered, you would usually need to establish that you had played a significant role in the child’s life and care to date (unless the child is very young, with limited established bonds).

A temporary “Custody Order” (otherwise known as an “Interim Order”) will remain in place:

• either until the Court considers it is in the child’s best interests to make an alternative interim arrangement;
• or to make Final Parenting Orders terminating the proceedings for the long term.

Generally speaking, the birth mother – in practical terms – will have “custody” of a newborn until the child reaches an age where the other parent can appropriately care for the child, independently from the birth mother.

In some circumstances, the Court may consider it appropriate for a newborn child to be placed into the primary care of the other parent or a relative.

However, this would likely only occur if there were significant risk issues associated with the birth mother (e.g., mental health concerns, illicit drug-taking, or a risk of fleeing with the child) and it was not considered safe for the newborn to remain in her care.

A “Custodial Parent” is regarded as the parent who has primary care of the child (i.e., with whom the child lives for the significant majority of time).

A “Non-Custodial Parent”, conversely, is the parent who does not have principal caring responsibility for the child but may otherwise spend time with the child.

The non-custodial parent is generally required to pay child support to the other parent, subject to the parties’ respective incomes.

The Child Support Agency’s (now called Department of Human Services, Child Support or “DHS”) calculations are based on the number of overnight stays the child has with each parent over (for example) every fortnight or month.

The Custodial Parent is generally responsible for the child’s primary care and thus usually takes on a greater role in the child’s day-to-day life and schooling.

If the Custodial Parent has the benefit of a Sole Parental Responsibility Order, they have the authority to make decisions about the child’s education, health and (if relevant) religious/ cultural upbringing without necessarily consulting the other parent.

In a word – yes: a non-biological father (e.g., the mother’s new husband or subsequent de facto partner) can be awarded “custody” of a child if such an Order is considered to be in the child’s best interests.

A non-biological father (or, indeed, mother) can apply to the Family Court as a person concerned with the care, welfare, and development of a child, in the same way as would a grandparent or aunt.

If this type of Application is made, consideration will need to be given to the role that the non-biological parent has played in the child’s life to date; the child’s relationship with that person; and the child’s relationship with their own natural parents.

Generally speaking, if a child already spends substantial time with both his/her natural parents, a non-biological father after a subsequent separation may struggle to obtain Orders to spend time with the child, let alone achieve an Order for any form of parental responsibility.

However, if the biological father has been largely absent from the child’s life and the child has formed a very close, quasi-parental relationship with the non-biological father, the Court would be more inclined to positively consider such an Application.

Technically, yes – if to do so is considered in the child’s best interests.

A step-parent may likewise be considered as a person concerned with the care, welfare and development of a child and thus be able to apply to the Family Court for Parenting Orders.

However, the Court will likely only consider this type of Application if the step-parent has taken on a significant role in the child’s care and the natural parents and/ or other family members are not deemed capable of properly caring for the child.

It is worth noting that although step-parents habitually carry out parenting duties by reason of their residing with the primary caregiver, they do not automatically assume any legal responsibility for a child.

This at first instance remains with the natural parents.  Nor will a step-parent (usually or ordinarily) become liable to pay child support if their marriage or de facto relationship with the natural parent subsequently breaks down.

In some circumstances, the parent with primary care of the child may express in their Will a desire for their new or subsequent partner (i.e., the step-parent) to take on legal guardianship of the Child (as opposed to the other parent) if they pass away.

However, if the other parent still retains a degree of parental responsibility for the child and has not been absent from his/her life, they will generally assume primary care for the child regardless of what is contained in the deceased parent’s Will.

A Family Court Order would then need to be sought by the step-parent.

Yes – the legislation specifically lists grandparents as being able to apply for Orders in relation to the care of a child.

Given the increasing role that grandparents play in today’s society in helping care for their grandchildren, the Family Court is dealing with more and more Applications by grandparents for either “custody” or, at least, Orders to spend time with the child separate and distinct to that of the parents.

Ultimately, such decisions (as always) come down to what is considered to be in the best interests of that particular child in the prevailing circumstances of that case.

Broadly speaking, if the parents do not possess either the physical or mental capacity to care for the child or are not deemed “safe” to do so, and the child has a close, established relationship with his/her grandparent(s), the Family Court will certainly consider an Application by a grandparent to have primary caring responsibility for a child.  

In some cases, one (or both) grandparents have already been acting in “in/loco parentis” for a significant period of time before any such Application is made, and the Family Court is being asked merely to “rubber stamp” an existing de-facto arrangement for the child’s care.

Yes – if the child is not safe in the care of either natural parent, and the circumstances are urgent (e.g., the mother or father are about to flee with the child), the Family Court has the power to make an urgent Interim Order for a grandparent to have “custody” of a child, effective immediately.

“Sole custody” refers to one parent having virtually 100% care of a child coupled with exclusive responsibility for making decisions about their welfare and development.

Orders to this effect would usually only be sought if the other parent does not have the physical or mental/emotional capacity to care for the child or meet their basic, everyday needs; or there are otherwise concerns with respect to family violence or child abuse for which the non-custodial parent is allegedly responsible.

If the other parent is not willing to agree to a “sole custody” Order and no compromise can be reached via negotiation or FDR, then an Application to the Family Court will be necessary.

The parent seeking “sole custody” (or “exclusive parental rights”) will be required to provide credible evidence to the Family Court to support their position and to justify the Orders they are seeking.

The first step will be to attend Family Dispute Resolution (“FDR”) with the other party to determine if reaching an “out-of-court” agreement is possible.

This is a compulsory step under the relevant legislation (either the Family Law Act (Cth) or Family Court Act (WA)) before applying to the Family Court, unless mediation is deemed inappropriate (for example, where there has been family violence or child abuse).

Under usual circumstances, if the FDR step has not been undertaken (and a “Section 60” Certificate confirming participation in FDR has not been issued) the Application for Parenting Orders will be rejected, unless a strong degree of urgency can be demonstrated.

For the most part, however, it is highly uncommon for one parent to simply agree that the other should retain sole parental rights (thereby possibly excluding the “non-custodial” parent from a meaningful role in the child’s life altogether) so these types of matters will virtually always require to be formally determined by the Court after a Hearing.

The party seeking “full custody” will need to provide the Court with sufficient and credible evidence about why it would be in the child’s best interests for the other parent to either spend no time with them or have no material participation in their upbringing.

An Order for “joint custody” means that parents will have an equal, shared responsibility for making decisions about all major, long-term issues affecting a child.

Generally speaking, if there is “joint custody” after separation then the child will either spend equal time with both parents, or substantial and significant time with the “non-resident” parent (e.g., perhaps 4-5 nights per fortnight).

A parent can have joint/equal responsibility for making decisions about major, long-term issues with respect to the child even if they don’t necessarily spend equal time with them.

The Family Law Act (and similarly adopted in the Family Court Act) was substantially amended in 2006 with a view to ensuring that children benefit from both parents playing a significant role in their lives, where to do so is appropriate and presents no obvious risks.

Specifically, the Family Court must now apply a presumption that it is in a child’s best interests for the parents to have Equal Shared Parental Responsibility (i.e., joint input into major decision-making).

This initial presumption can, however, be rebutted or dispensed with if it can be established that there has been (or there exists an unacceptable risk of) family violence or child abuse; or an Order for Equal Shared Parental Responsibility is not otherwise in the child’s best interests.

If the presumption does apply, the Court must firstly consider whether equal time (e.g., a “week-about” or a 3/4/4/3 arrangement) would be in the child’s best interests and, if not, the extent to which “Substantial and Significant Time” should be awarded to the parent not having majority care.

Accordingly (and broadly speaking) equal time arrangements for children are much more common than they once were, and in practical terms fathers are the principal beneficiaries of this legal and cultural change.  At the very least, the non-resident parent is able to spend far more time with the child (provided there are no risk issues) than they were previously.

If the parents are spending equal time with the child (for example on a “week-about” basis) there is NO primary parent or primary caregiver.

If “joint custody” is in place, such an arrangement is relevant for the assessment of child support.

When assessing an appropriate level of child support, the Child Support Agency (“CSA” – now called Department of Human Services, Child Support or “DHS”) will take into account the care percentage each parent has with respect to the child.

However, using a complicated statutory formula, the CSA must also consider each parent’s annual taxable income and whether they are legally responsible for other dependants. 

It is certainly possible for one parent to have a child support liability to the other parent despite having equal shared care – primarily in circumstances where there is a significant disparity in the parties’ annual taxable incomes.

However, it is not necessarily uncommon for parents with “50-50” care of a child to decide not to seek child support payments from the other. 

As a general rule, each parent is responsible for their own travel expenses (such as for holidays) when the child is in their care.  

In circumstances where a child is required to travel a significant distance to spend time with the other parent, the general “rule of thumb” is that this cost be borne by the parent who will be spending that time with the child.

However, if the primary caregiver has relocated a significant distance away with the child post-separation, it may be appropriate for any travel expenses (e.g., plane fares) to be shared equally.

Parents who are unable to afford a solicitor can contact Legal Aid WA to determine if they are eligible for a Grant of Legal Aid to challenge a CSA assessment with which they disagree; or to enforce their rights via the CSA or, ultimately, the Family Court.

Alternatively, they can reach out to their local Community Legal Centre who may offer some limited advice and/or assistance. 

There can be serious consequences for a parent who contravenes a Family Court Parenting Order.

Technically, the other parent could file a Contravention Application with the Court seeking to have the other parent, in effect, “punished” and, in some circumstances, even for a change to the existing Orders.

If a party is found to have contravened an Order without a reasonable excuse, the Family Court has the power to impose a fine, good behaviour bond, community service and – in extreme cases – even imprisonment.

However, Contravention Applications – especially if lawyers are engaged – are generally reserved for the most serious of cases, given the costs involved in pursuing the matter through Court.

Further, the party who files the Application must provide clear, credible evidence in support of the alleged breaches – and where the Court is considering a penalty of imprisonment the standard of proof required is “beyond reasonable doubt” (as opposed to the less onerous “balance of probabilities”).  

If a party is found to have contravened the existing Orders but has been able to establish a reasonable excuse for doing so, the Court will generally not impose a penalty.  

Obviously, what constitutes a “reasonable excuse” can be wide and varied and will depend on the particular circumstances of each individual case.

Removing custodial rights from a parent relates to the formal altering of an existing arrangement or Court Order whereby the time that parent spends with the child is either significantly reduced or ceased altogether.

The concept can also refer to one party having their parental responsibility terminated or limited, meaning they can no longer have any (or, at least, as much) input into major decisions regarding the child.

Any parent wishing to formally remove “custody” from the other parent will require to attempt FDR with the other party (if appropriate) failing which an Application to the Court will be necessary.

Any such Application will have to set out the specific facts/ evidence they are relying upon to justify what is, on the face of it, a fairly drastic step – for example, sexual/physical/emotional abuse; family violence; drug or alcohol abuse; or neglect).

Mediation can occur via government-funded organisations (e.g. Relationships Australia or Anglicare) or, alternatively, via private service providers.

Mediation utilising the various government-funded agencies is inevitably the cheaper option, however, there can be extensive delays (up to a few months or more) even for the process to commence.

Whilst private mediation will require to be paid for by the parties themselves (usually equally) it can generally occur within a few weeks.

To commence the mediation process, one party needs to contact a Family Dispute Resolution Practitioner or Accredited Mediator (“the mediator”) and book an individual appointment (otherwise known as an “intake session”).

This is, essentially, a screening mechanism for the mediator to determine if mediation is appropriate in the circumstances – if there has been family violence or child abuse, the mediator will often deem it inappropriate to proceed and issue a Certificate to that effect.

This then enables either party to immediately commence Parenting Proceedings in the Family Court.

If mediation is deemed appropriate, the mediator will then invite the other party to attend their own, separate “intake session” and thereafter make arrangements to conduct a joint session involving both parties.

The mediator will act as an impartial facilitator in assisting the parties to reach a negotiated agreement regarding the child’s living arrangements and all associated parenting issues.

The mediator will encourage the parties to listen to each other and consider the other’s point of view.

The mediator will also keep the parties “on track” and focussed on the child and his/her best interests (as opposed to, perhaps, their own “gripes” about the other party).

When it is not possible to simultaneously have both parties together in one room, the mediator will separate them into individual rooms.

This is called “shuttle mediation”, where the mediator will move between the two rooms to converse with the parties independently and play the central role in facilitating the parties’ discussions and in relaying their respective concerns/ positions/ proposals to each other.

Domestic violence (or “family violence”, as it is referred to within family law) is currently a major issue throughout Australian society and, as such, the Family Court deals with countless cases involving such allegations.

The Court always takes family violence allegations seriously and, if necessary, will give greater weight to the need to protect the child from any risk of harm than to the benefit to the child of having a meaningful relationship with the alleged perpetrating parent.

As findings of fact and the testing of evidence through cross-examination cannot be made on an interim basis, the Court will habitually err on the side of caution when allegations of family violence are raised.

The Act provides a wide definition of what constitutes “family violence”, which includes coercive or controlling behaviour and physical, emotional, psychological, and financial abuse.

Of course, when these types of allegations are made, the Court will expect to be provided with any available evidence of the other party’s conduct, if possible.

However, it is not uncommon for victims of family violence to be unable to provide much in the way of proof, as such behaviour almost invariably occurs “behind closed doors” and not in the presence of witnesses.

In such cases the Court will then assess each party’s credibility after the testing of their evidence at Trial.

Unfortunately, the time between filing an Initiating Application and Trial itself can in some cases be as long as two years.

If and when the matter reaches Trial and family violence is found to have occurred, this automatically rebuts the initial presumption of Equal Shared Parental Responsibility which, in turn, means the Court is not bound to consider each parent spending equal time (or even substantial and significant time) with the child.

This can accordingly result in the perpetrator having their time and communication with the child significantly curtailed.