Children & Parenting

If you have separated from your partner or spouse and have dependent children, you will need to make decisions about their future care and living arrangements. While this can be an emotional and complex time, we can provide important advice and help you navigate the process to make workable parenting arrangements that are in your children’s best interests. We can also help if you are a grandparent or other family member seeking advice about the care of a child.

Considerations when determining parenting matters

Parenting matters cover a range of issues including: who a child will live and spend time with, who will have parental responsibility for the child, how a child will communicate with a parent when they are not in their care, and matters relating to major considerations such as health care and education.

Family law legislation requires that all decisions about parenting arrangements must be 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 both parents, and the need to protect a child from harm. Greater consideration is given to the need to protect children from harm.

There is a presumption that it is best for children to have an active relationship with both parents and that each parent is equally responsible for their care and support. Shared parental responsibility means that parents are required to consult each other regarding long term decisions for the child. While equal parental responsibility does not necessarily mean equal time, there is generally an expectation that each parent will spend “significant” time with their child. The presumption that a child should have an active relationship with both parents can be rebutted by circumstances such as domestic violence or severe substance abuse.

How are parenting arrangements made?

In general, it is best if parents can come to an agreement between themselves about the ongoing care of their children. This can happen through an informal agreement, a parenting plan, or parenting orders. 

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

A parenting plan is a written agreement documenting the arrangements agreed between the parties. However, a parenting plan is not legally enforceable.

Parenting orders are legally enforceable orders. They can be made between the parties by consent and filed with the court. Alternatively, when parties cannot agree on parenting arrangements and need the matter decided by a court, the court will determine the parenting orders.

Pre-action Procedures for Parenting Matters including Family Dispute Resolution.

The Family Law legislation sets out requirements for parties to undertake parenting settlement negotiations prior to commencing Court proceedings seeking parenting Orders. These requirements include making offers of settlement and, if there is no agreement reached through this process, then to engage in Family Dispute Resolution ”FDR” (mediation). Some cases will not be suitable for the FDR process, For eg in cases of significant family violence.  We can assist clients to engage in these pre-action procedures.

Court proceedings

If you are unable to resolve your matter through negotiation or FDR then you may commence Court proceedings and 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 the court can properly hear your matter on a final basis).

To understand the views of the child, the court may make an order for 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.

We can assist parties at all stages of the Court process from drafting their applications and supporting documents to appearing at Court.

Relocation disputes

When a parent with the primary (majority) care of a child wishes to move with the child to another town, state, or country, this is referred to as relocation. We can advise you on matters regarding relocation – whether you wish to relocate with your child or children or oppose your ex-partner’s proposal to relocate the children.

As a general rule, a party cannot relocate children without the agreement of the other party or an order of the court. We can discuss the exceptions to this general rule and assist in any litigation arising from, or in anticipation of, the relocation of children. We can also assist with recovery orders.

If you need any assistance, contact one of our lawyers at [email protected] or call 1300 704 064 for a no-obligation discussion and expert legal advice.