Changes to the Children?s Act gave equal rights to parents over the care and control and custody of their children, but warned a matrimonial lawyer, the provisions will likely not be applied to the majority of cases if communication has broken down between the couple.

Lawyer Karen Williams-Smith said that many estranged fathers had been chomping at the bit to apply for joint care and custody of their children in anticipation of the new law which came into force in January.

But she said while equality was Parliament?s intent when wide-ranging amendments to the Children?s Act were made, courts still had a duty to consider the interests of the child as paramount.

And if parents were not communicating amicably with each other, the norm rather than the exception in custody cases, it was unlikely that a court would order joint custody, she told an audience at the Women?s Resource Centre.

?You may have a situation where both parents have equal rights, but if it?s not in the interests of the child it?s not going to happen,? she said.

?If the situation is not ideal how can you have joint care and control?

?When the parties are not communicating ??

Ms Williams-Smith said that since the amendments came into effect she had only come across four or five cases where an order was made for joint care and control of the children ?and there?s confusion in at least three of them?.

She said, while the Act allowed applications to be filed in either the Supreme Court or Magistrates? Court, she would recommend the lower court if funds were limited.

But, if money was not an issue and a divorce was contemplated, then a more expensive Supreme Court filing was probably the best way to go, she said.

She said custody filings could cost from $10- $15,000.

Too many parents were intent on winning a child custody case and too often only realised in hindsight that the children?s interests were not served and the proceedings were too costly, Ms Williams-Smith continued.

The lawyer also cautioned that the Department of Child and Family services is involved in custody cases and could recommend against joint custody if it was not in the child?s best interests.

?A lot of men are confused with the real intent of this Act because they think they are automatically entitled to joint care and control.?

Custody refers to all major decisions made for the child ? such as education and health ? and ?care and control? refers to a child?s home environment.

Before the amendments the law almost always automatically favoured the mother in child custody cases, while requiring estranged fathers to provide financial support.

Ms Williams-Smith said that the changes meant that women now ?had to get their act together? if they had custody because in the past fathers were being unreasonably denied access to their children, and their custody rights were not necessarily superior to those of the fathers.

The Children?s Act amendments also removed any legal distinction between children born to married or unmarried parents.

And it gave the courts extra powers to act in the interests of the child, including to order the parents to go to mediation.

?It can be quite effective, but it doesn?t have to be in every case,? the lawyer said of mediation.

?It?s touchy feely, it?s very amicable but sometimes it doesn?t work,? especially where the couple has had a particularly nasty break up and a history of court action.