The term joint custody is no longer used in the official terminology of the Family Law Courts. It is however a term used frequently by members of the public.

The Family Law Courts these days prefer to use terminology which is more in keeping with the aims of the relevant legislation.

Using today’s terminology the term joint custody is covered by a “live with” Order and a “spend time with” Order.  The Court routinely makes these Orders every day, providing that a child or children are to live with one or both of the parents or spend time with one or other of the parents.

The Family Law Act sets out 4 main objects, namely:

  1. ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interest of the child
  2. protecting children from physical or psychological harm from being subjected to, or exposed to abuse,  neglect or family violence
  3. ensuring that children receive adequate and proper parenting to help them achieve their full potential
  4. ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children

There are then a number of underlying principles which the Family Law Courts are required to consider which are as follows:

  1. children have the right to know and be cared for by both their parents, regardless of whether their parent are married, separated, have never married or have never lived together
  2. children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives)
  3. parents jointly share duties and responsibilities concerning the care, welfare and development of their children
  4. parents should agree about the future parenting of their children
  5. children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture)

The Court has a very wide discretion in determining what are the best arrangements for a child or children in a particular case.  There is no one-size-fits-all approach 

each case is looked at individually but always having regard to the principle that the best interest of the child is the paramount consideration.

The Family Law Act recognizes that wherever possible the best decisions about children should be made by the children’s parents.  It is for that reason that the Courts and the Legislation encourage the parties resolve their issues out of Court if possible.

There is a strong emphasis on mediation and family dispute resolution as non-Court alternatives to litigation (Court proceedings).  In those cases where the parties are not able to reach complete or final agreement the Court will deal with the matter, although there may be some considerable delay involved.

In the event of having to go to Court over children, there are a number of steps that are likely to occur.

  1. Mediation is compulsory prior to issuing proceedings in Court, apart from in the most extreme or urgent exceptions.
  2. In the early stages of the case, the Court will make Interim Orders which are designed to regulate the arrangements until the Court has time to hear the case more fully.  Usually, there will be a delay of 12 to 18 months to wait for a full hearing.
  3. The Court will initially make Orders which may involve the parties going to some additional counselling such as family dispute resolution, and the Court may make some Orders of an interim nature regarding the living arrangements for the children until the case can come back to Court.
  4. The Court may order a short report to be prepared about the family and the issues involved, the purpose of which is to give the Court some independent assessment of the case.
  5. The Court may order a full Family Assessment Report to be done although these are not usually ordered until later, given the cost involved.  Such Reports are done by qualified private practitioners who will charge for their Reports or depending on the financial circumstances of the parties, the Report may be done “in-house” by the Court.

There is no principle which says that the children are to live with each parent on an equal time basis.  The Law does refer to this as a desirable outcome but the Court can depart from this in appropriate cases, and frequently does.

Call Martin

For more information please feel free to
call Martin Robinson on
(08) 8212 6788
for a no-obligation chat or

4th Floor, 55 Gawler Place
Adelaide SA 5000