In the period leading up to Christmas our office routinely receives enquiries from people about “child custody”, “custody rights”, “family law custody” or “child custody laws”.
While these terms haven’t been used in the family law context since 1995[i], and given we are almost 20 years down the track; they’ve remained in the minds of some people presented with parenting issues.
There’s been a change in terminology in family law due to a shift in the context in which the court examines a parenting dispute.-In approaching the exercise of making a parenting order, the court comes from a perspective that while children have rights; parents have responsibilities.
Terms that suggest ownership or right such as “child custody rights” i.e. my right to child custody, are not relevant to the modern Family Court. Further, parents who think in these terms may be inadvertently doing a disservice to the presentation of their case.
So how should I approach Family Law child custody? And what if I don’t want to go to Court?
Whether or not you want, or need, to go to Court the best outcomes for your children (and most likely for you) will be achieved by “child-focused thinking”.
This means framing your proposal for the separated co-parenting arrangements according to the following types of considerations:
- Is the proposal “businesslike”? Have you been able to put aside your animosity towards the ex partner when considering the proposal?
- Has the proposal been considered in terms of what is practical for the children?
- Is the proposal likely to be enjoyable for them?
- Does the proposal make concessions as to what benefits they receive in the other household?
- What are your motivations in making the proposal? i.e. are you looking to advance the children best interests?
Some of the rights children have are to enjoy spending time regularly with both parents, (consistent with what is necessary to keep them safe from harm), have meaningful relationships with both parents and extended family, receive adequate and proper parenting etc.
In my experience not many parents consulting a Brisbane family lawyer would disagree children should not have these rights or that children are “property” such as is suggested by thinking in terms of custody laws.
What about this Christmas – I don’t have parenting orders or a parenting agreement in place?
Some ex partners are difficult (believe me I know).
The best you can do is control what you’re doing. This is an area of law where two wrongs don’t make a right.
Remember you need to be child focused; and you should act “responsibly” for your children. Here are some tips for Christmas holidays negotiations:
- Try and use email for your communications. While face to face may be best to repair a relationship, not so here. Remember your email may end up annexed to an affidavit so behave in a businesslike and child focused manner when communicating your proposal;
- As part of being child focused think about your proposal. Cover the above points.
- Avoid being reactive. He or she may say something stupid, insulting, threatening or abusive. Don’t react – you have it in writing;
- During the festive season don’t drink text or email. At Christmas many people have a few drinks and emotions are running high with separation and absent children at a family time of year. Again, the focus needs to be the children and not your own pain. Things will work out long terms if you stay calm;
- Look after yourself. Don’t overdo it and set those resolutions in place for the New Year. I often say to my clients “it’s a marathon not a sprint” which is particularly relevant when dealing with a difficult ex partner.
I hope anyone taking the time to read this has found it helpful and informative. Have a merry Christmas in 2014; and a Happy New Year in 2015.
Peter Hooper – Hooper Mill Family Lawyers
[i] The Family Law Reform Act 1995 (Cth) replaced part VII of the Family Law Act 1975 (Cth) (“FLA”) and changed the terminology when dealing with children’s matters from “guardianship”, “custody” and “access” to “specific issues”, “residence” and “contact”.
The Family Law Act 1975 has most recently been amended by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) which commenced operation on 1 July 2006. This amending Act changes the terms “residence” and “contact” to become “living with”, “spending time” and “communicating with”.