Family Law Practitioners no longer refer to terms such as “custody” “access” and “guardianship” when dealing with parenting matters as these terms imply ownership. There are no property rights which attach to children.
Instead the following terms are utilised:-
“LIVES WITH” – which details the person with whom a child/ren is to live;
“SPENDS TIME WITH” which defines the extent of contact between a child/ren and the other parent;
“SPECIFIC ISSUES” which sets out various aspects of parental responsibility, such as schooling.
Unless a Court orders otherwise, there is an automatic presumption that both parents equally share parental responsibility for their children until the children reach the age of 18 years. This parental responsibility remains whether or not either party decides to remarry or have other children.
When parents are able to agree with whom the children live with and also agree when they are to spend with the other parent, we recommend that a written Agreement be signed by the parties and filed with the Court. These Agreements are known as “Consent Orders”. The reason why we recommend parents enter into Consent Orders is that unfortunately sometimes relations between parents deteriorate after separation. Consent Orders provide an enforceable obligation (which is enforceable on both parents) regarding the care of the children.
Occasionally parents need assistance to work out what is the best care regime for their children after separation. In this instance, mediation is beneficial to bring about a resolution without the intervention of the Court. Once mediation has been undertaken and a resolution reached, the Agreement can then be documented into Consent Orders.
If parents are unable to agree on parenting matters, then a Judge will make Orders specifying with whom the children are to live with and the time the other parent is to spend with the children.
Where a matter is referred to the Court, a Judge’s first and foremost concern is “what is in the best interests of the child”, not what is in the best interests of Mum or Dad. Therefore, we find that it is much better for parents to enter into an Agreement that they can both live with and operate within the scope of an Agreement instead of a Judge imposing an order on the parties.