Child Custody & Separation

So you and your partner are having problems. Maybe you have already separated….maybe you are just thinking about it. One of the main questions I get asked by my clients in Child Custody matters is what is the law concerning children and separation. So this article is to help clarify the law regarding separation and child custody. Before I start though, I need to clarify that there are always pros and cons of any course of action you take at separation so in no way am I advising anyone to take a specific type of action. At the end of the day, if you are not sure what is the best thing for you to do then obviously speak to a lawyer.

First and most importantly, you need to understand that there is no law to say who should have the custody of the children at separation. Therefore it is up to both biological parents to determine the arrangements for the children at separation. There is no such belief that women will automatically end up with the children. While this may have been the case many years ago, the Family Law Act has been specifically drafted to remove a preference of any sex when determining custody matters.

This is where things can become messy but technically if one parent seeks to unilaterally impose arrangements for the children then this is technically permitted. There are obviously ramifications for doing this if the matter goes to court but technically while there are no orders in place then a parent can make arrangements for the children as they deem necessary.

Again, while there are no orders in place you could technically refuse to permit the other parent any access to the children. In circumstances where there has been significant violence or drug use, it may be that this is the appropriate course of action, however, if you are refusing access simply because you are upset with the other parent then it is not recommended as the court will look adversely upon you for not allowing access. More importantly then how you are viewed in court is the damage that is caused to children who do not have regular access with both parents. Remember that while a separation is hard on you, it is far harder on your children.

This is a question I get asked a lot when one parent withholds children from the other parent. The answer is yes, no, maybe. You technically can take children, if for example they are at school, or in a park, or the children voluntarily come up to you for a cuddle etc. What you cannot do is put yourself in a position when you break the law in order to get the child. For example, you cannot enter into the other parent’s house to get the child, you cannot try and forcibly remove the child from the other parent’s arms.

If the child is left at daycare, then technically you could collect the children from daycare or even a third party’s care. Basically, only the other biological parent can refuse to hand over children.

Unlike your own biological children, the rules surrounding your step-children are very different. Even if you have raise your step-child from birth, you have no automatic rights to that child until and unless you obtain a Court Order that gives them to you. You cannot simply just take the child, if you do you could be charged with kidnapping, deprivation of liberty or similar offences.

If you believe that the child is at risk of harm in the other parent’s care then for the immediate purpose you should contact Department of Communities, Child Safety (DCFS). DCFS can remove the children from the other parent’s care very quickly if the children at at risk of being physically harmed (either through violence or drugs etc). While there is no guarantee that the child would be placed in your care, you can liaise with DCFS and ask for the care of the child or regular access to the child.

In saying all of this it is important to know that you would be considered ‘a significant other person’ in the stepchild’s life and as such you can apply to the Family Court for Orders for access or even custody of the child. In this situation, you would need to prove that the stepchild’s best interests are served by being cared for or maintaining a relationship with you.

If the other parent takes the child from you can you get an Order from the court to have the children returned? Well, it depends on how long the children were in your care and the reasons for that arrangement. If you have just separated in the last few months and the other parent takes the child then in these circumstances you would not likely be successful if you were to seek for a return of the child. This is not to say that you could not apply to the court for custody of the child which the court would assess and then possibly have the children returned to your care but it would be treated like any other custody application and you would not be given priority over the other parent for the children to live with you.

If however you have been separated for a long period of time, say, 12 or more months, have no custody Orders in place and the other parent has voluntarily left the children in your care and then decides to unilaterally take the children then you may be successful in getting an Order for the children to be immediately returned to your care because the children have been in your care by agreement for a long period of time. The Court may also at this stage make Orders for the children to live with you. By going through this process however, you need to be aware that the other parent could take the opportunity of being before the court in order to seek Orders concerning the children themselves.

If a parent refuses to return the children then it comes as quite a shock to people that, for the most part, the police will not get involved in parental disputes over children. In fact, the police do not have any jurisdiction in relation to Family Court matters. The police will normally advise you that you need to go the Family Court and obtain Orders. Even if you do have Child Custody Orders in place, the police will still not get involved in your dispute unless they are ordered by the Court (usually by a Recovery Order).

The police can, however, assist you by completing a safety check on the child (ie. they go to the house and assess the conditions, speak to the child if appropriate and ascertain if the child is in imminent danger). The police can also assist by attending with you to your previous residence in order to ‘keep the peace’. This would normally be utilised when you need to collect your belongings or furniture.

If the house that you live in is owned by both parents (or rented by both parents) then you cannot force the other parent to leave the house without either a Family Court Order for sole occupancy of the house or an Ouster Order being attached to a Domestic Violence Order (an Ouster Order is an Order for the other person to vacate the property within a certain timeframe).

If you rent the property and the rental agreement is in your sole name or the property is in your sole name then you can refuse the other parent entry to the property. The only way they could then be technically permitted access to the property would be if they obtained either an Ouster Order or Sole Occupancy Order from the Court.

Technically you could change the children’s school without the other parent’s consent or knowledge, however we would always recommend that you at least try to come to an agreement with the other parent first before making a decision concerning the children’s education as the Court does not approve of parents who unilaterally make decisions concerning the significant issues concerning the child such as schooling.

Remember, while there are no Custody Orders in place you could change a child’s school, so too could the other parent. What you don’t want to happen is a tit for tat situation occur where the children are constantly being removed from a different school every other day.

The answer to this question is that yes you can move with the children without the other parent’s permission as long as it is not a significant distance away. By significant we mean something like 50km or more away. If you were planning on moving far away (say interstate) then you would need to obtain the other parent’s permission (preferably in writing). If you move without having obtained permission to relocate with the children then you run the risk that the Court will make an Order for the children to be returned to near the area where you were previously living.

The rule of thumb is this: ‘Can you maintain your current custody and access arrangements from where you are planning to move without unreasonably burdening the children or other parent?’ If you can then it is likely to be a reasonable move.

Again, while there are no Orders in place there is no obligation for a parent to provide the other parent with either an address or contact details. If the relationship is one fraught with Domestic violence and a risk to safety exists, or the other parent has threatened to take the children, then it could be more than reasonable to not provide your address details.

If you do not provide your phone number to the other parent, then we do suggest (unless to do so would be harmful to you or the children) you at least have an ability for the other parent to contact the children such as Skype, email, or children’s own mobile phone.

Again, while no Orders exist, if the child has a minor medical ailment (such as flu) then you do not have to advise the other parent. However, if there is a medical emergency that requires hospitalisation (such as a broken arm) then it would be wise to let the other parent know as soon as practicable. While you technically do not have to advise them, any Court would look upon this behaviour as being extremely poor and it could backfire on you in the long term.

Obviously you need to have passports for the children in order to take them overseas but if you do have the passports then it is important to understand the law.

While there are no Orders in place you can take the children out of the country BUT if the other party has commenced proceedings in Court and let’s say either no Orders have yet been made (you haven’t had your first court date yet) or the Orders are silent about going overseas then YOU CANNOT TAKE THE CHILDREN OUT OF THE COUNTRY. If you do remove the children from Australia after becoming aware that proceedings have been commenced in Family Court then you will be in Contempt of Court on which the punishment can range anywhere from a fine to imprisonment.

You also need to be aware that if you are contemplating trying to remove the children from Australia permanently then you risk a Hague Application being brought against you over in the country that you are relocating to (if the country is part of the Hague Convention). If you wish to relocate permanently with the children overseas then the appropriate course of action is to obtain written consent from the other parent or apply to the Court for an Order permitting you to relocate.

There appears to be a belief in the community that it is important for you to commence proceedings first for custody of the children. Generally speaking it makes no difference whether you file an Application first in Court or whether you are the Respondent in the proceedings. The Response documents give you the opportunity to say which Orders you agree with and alternatively what further Orders you are seeking that were not in the Application.

In saying this though, if you are about to do something that you think a court may frown upon, eg. breach a Court Order by withholding the children or removing the children from their school etc then it is important to demonstrate to the Court that you have filed in the Court before you take unilateral action if possible. If the other parent files first then it may look like you were not attempting to obtain permission of the court before simply doing what you want.

No-one has to have Custody Orders if they don’t want them.  There are many separated parents out there who simply have an understanding between them and they are capable of working out the arrangements for the children between themselves.  There are also those parents who simply write something down between themselves so they can organise themselves but otherwise are happy to follow the agreement.  But then you have those parents who cannot come to agreement or are unable to communicate, or possibly one parent keeps changing the arrangements without agreement from the other parent.  It is these types of arrangements where we recommend that Custody Orders should be implemented.

There are 2 types of written documents for child custody:

1. Parenting Plans; and
2. Court Orders

Parenting Plans are a written documented and signed agreement between both parents which outlines who has custody of the children and who has access. It can be as wide or specific as necessary. This type of document is not binding on either parent but can be used as evidence in Court to reflect what the arrangements concerning the children have been in the past.

Court Orders are written Orders which are sealed by the Court (red round stamp placed on the document). Court Orders can be obtained by Consent between both parents without commencing Court proceeding but is approved by the Court or by commencing proceedings where a Judge determines who should have custody of the children.

Court Order by Consent

If you wish to obtain an Order by Consent then you will need to draft up the Orders that you wish the court to make. In addition to those drafted Orders (which we call ‘Minutes of Consent’), you will also need to complete the following documents:

1. Application for Consent Orders
2. Annexure to Consent Orders (one needs to be completed by both parents)

All documents will need to be signed by both parents. You will have to pay the filing fee and then you file the documents in the Family Court. Once the court receives the documents a registrar or Judge will look at the documents and if they are satisfied they will put a seal on the Orders and return them to you by post.

Application to Court for an Order

If you are not able to agree on custody Orders and wish to commence proceedings you will need to attend Family Dispute Resolution (mediation) first. After the mediation, a certificate will be sent to you called ‘a section 60I Certificate’. The section 60I certificate is required before any Application can be filed in court (unless it is an urgent matter, or there is an imminent risk of harm to a child). If the other parent refuses to attend mediation, the section 60I certificate will still be issued to you but not to the other parent.

You will then need to complete, execute and file 3 copies of the following documents:

1. Initiating Application;
2. Notice of Risk of Abuse;
3. Affidavit of you and any other relevant person;
4. Section 60I Certificate.

You will need to pay a filing fee to the court. Once filed in the Court, the Court will return 2 copies of all the above documents to you. You will then need someone other than you and over 18 years old to serve (give) to the other parent 1 copy of all your documents.

In the top right hand corner of your documents is your first court date. You will be required to attend court on that date to obtain temporary Orders. The Court will then direct you as to how they wish to proceed with your matter and what Orders they wish to issue.

Remember, these are some technical basics concerning child custody and legally what you can and cannot do. However, caution needs to be taken as your actions outside a courtroom can result in bad outcomes inside the courtroom if your behaviour is considered reckless or belligerent. There is more to Custody matters then simply what the law requires. Before you ever decide to take any course of action always ask yourself, ‘Is what I am about to do really in the best interests of the children?’ If you are unsure or the answer is no then don’t do it. Finally if you are not sure about whether you can or cannot do something then seek advice from a Family Lawyer.