I want full custody of my child
How many times have we heard our clients insist on this prerequisite as their absolute right and entitlement? Sadly it is no longer the fundamental lynchpin for the future parenting regime that one parent will succeed in gaining this endpoint position. In short, full custody no longer exists in our legislative dictionary either in reality or spirit. Since 2006, for better or worse, the Australian family law legislation has recognised more so than ever that children are not to be considered pawns in the parental custodial battlefield and are in fact accorded greater recognition as power brokers in their own right.
For many years the focus of the post separation scenario had mandated that the decision makers in the litigation arena consider at all times what will ultimately centre on the best interests of the children. How this concept was played out involved a determination of the advantages and disadvantages of the domestic home life and its players, both as to the immediate parental spheres of influence as well as the extended members of the family such as new partners and their children and even grandparents. Schools, recreational and social activities took centre stage together with the daily balanced diet of three meals, generally described in minute detail in affidavits and other documents filed in court, such information intermingled with the proclivities of the sexual predator of the next door neighbour that may well constitute the potential risk to the child the subject of the strongly contested application.
All such dominating factors have involved the weighing up of environment and influences essentially on a scoreboard by court counsellors, lawyers and judges so that in effect one party may receive ticks and another crosses as to the suitability or otherwise of their domestic arrangements. The greater the ticks the more likelihood you will gain the prize of fulltime care and control of the child or children with limited and severely defined access rights accorded to the non custodial parent. Bingo, a full custody order is made by the court with associated but reduced fringe benefits to the unfortunate parent who will be demoted to second fiddle in the life of the child or children. Not easy to foster a meaningful relationship between members of the family.
Is this fair? Fair to whom: the child or the parent? Did the parents and the children readapt to this new and separated lifestyle? Did the legislation and the family law experts in the field solve the family problems and permit the development of an homogenous and blended lifestyle for parents and children? Not so said the experts who had been bound to determine that the placement of the child or children would be underpinned by the yardstick measure of what will ultimately, short and long term, be in their best interests.
The paramount consideration as to the best interests of the child still remains at the forefront of the process yet, since the introduction of The Family Law Amendment (Shared Parental Responsibility) Act 2006, there has been a redefinition of values and fundamental principles as to how this may be played out and achieved. A major cultural shift in the family law reforms has sought to facilitate the nurturing of an ongoing relationship between parents and children albeit that the parents have severed their own ties. It is anticipated that children will benefit from a meaningful relationship with both of their parents provided the child or children are not placed at risk of harm.
Is this merely repackaging of an old and perhaps hackneyed and flawed system that failed in the past?
This new law encourages parents to equally share responsibility for their children. Both parents are accorded the responsibility for the making of major decisions about their child’s care particularly those that will have a long term effect such as education and religion. This does not always translate into sharing equally the time that each parent may enjoy with the child or children and again there may be factors mitigating against such a regime, but the issue will be determined equitably by applying well thought through and acceptable codes of conduct. The terminology has been massaged to prevent pre determined and adverse decision making that will denigrate the position of either or both parents. The buzz words of the current vernacular now turn on children living with their parents, spending time with their parents and communication with parents. No longer do we hear of full custody, residence, guardianship or access.
What is now a fundamental difference is that it is the right of the child to know the parent and enjoy the relationship and not that of the parents. It is all about the child, not the parent. In other words it is a total rebadging of concepts.
So what is new and how do these legislative amendments work?
A full support system has been implemented to assist in the process. The emphasis lies in negotiation of issues to avoid if possible protracted, expensive and soul destroying litigation if at all possible. One such means to encourage less aggressive determination of the problems has been via the recognition that many of the intractable problems cause irreparable damage to the child and children involved in the litigious hotbed.