Parenting Matters

Separating from your spouse or de facto partner can be emotionally challenging, particularly when there are children involved. Agreeing on new care arrangements for your children can be complex and it is important to be supported during this difficult time. We have a wealth of experience in this area and can provide you with important advice and legal guidance to promote the best interests of your children. We can also help if you are a grandparent or other family member seeking advice about the care of a child.

Children’s matters

Children’s matters cover a range of issues such as:

• who a child will live and spend time with after a relationship breaks down?
• who will have parental responsibility for the child?
• how a child will communicate with a parent when they are not in their care
• matters relating to a child’s health care or education

Family law legislation in Australia requires that all decisions about parenting arrangements are made in the best interests of the child. The primary considerations in deciding what is in the best interests of a child are the benefit of the child having a meaningful relationship with their parents, and the need to protect a child from harm. Greater consideration is given to the need to protect from harm.

Parental responsibility

Parental responsibility refers to the duties, power and authority that parents have in relation to their child. Under family law legislation there is a presumption that shared parental responsibility is best for the child, but this will not be the case in all situations. Shared parental responsibility means that parents are required to consult each other regarding long term decisions for the child and does not necessarily mean that the child will spend equal time with each parent. Decisions about living arrangements are made with reference to a number of factors.

How are parenting arrangements made?

Generally, it is best if parents can agree between themselves about the ongoing care for their children. These arrangements may be made informally or through a parenting plan or parenting orders.

An informal agreement is simply an agreement between the parties that is not documented. The risk with an informal agreement is that issues may arise if the parties no longer agree on the arrangements.

A parenting plan is a written agreement documenting the arrangements settled between the parties. A parenting plan can be registered with the court but is not legally enforceable. Therefore, we do not recommend them in most cases.

Parenting orders are legally enforceable orders. They are made between the parties by consent and filed with the Federal Circuit and Family Court of Australia. Alternatively, when parties cannot agree on parenting arrangements a court may need to determine the parenting orders which may include people who are not actually a parent.

Court proceedings for parenting matters

Before applying to the court for parenting orders, and unless extenuating circumstances exist, you will need to attend Family Dispute Resolution. This is a form of mediation used to encourage parties to negotiate a resolution to their dispute outside of the courtroom.

The conference is conducted by an accredited family dispute practitioner whose role is to help the parties work through the issues with the objective of reaching a consensus. Family members or support persons are permitted to attend the conference. If you would like your lawyer involved, you should discuss this with the practitioner conducting the mediation beforehand.

The parties attending should make genuine efforts to resolve the issues in dispute and explore options for workable parenting arrangements that will be in the best interests of the child or children. The practitioner should ensure that each party understands the process and the terms of any agreement reached.

If an agreement is reached, a parenting plan can be developed, or consent orders filed with the court.

If Family Dispute Resolution does not resolve your matter the court will hear evidence and make orders in accordance with the best interests of the child. The court process can take some time and the court may make interim orders (i.e., orders that stay in place until a final hearing of your matter).

To understand the views of the child, the court may order a family consultant to interview the child and family and write a report or may appoint an Independent Children’s Lawyer to represent the interests of the child.

The Hague Convention

Other matters that a court will hear include recovery orders, relocation disputes or Hague Convention (international abduction) matters.

After separation, a parent or guardian may decide to move the children of the relationship overseas. However, this can only be done with the fully informed consent of the other parent, guardian, or a court order. International child abduction occurs when a parent or guardian takes their children from their home country without this permission.

The Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention) provides a process for seeking the return of children who have been abducted either from or to Australia. We can assist in this complex and emotional process.

If you need assistance, contact [email protected] or call 02 9550 9588 for expert legal advice.