A relationship breakdown can be particularly complicated when there are children involved. Agreeing on new care arrangements for your children can be extremely difficult and emotionally challenging. Our lawyers can provide you with important advice and expertise during this time. We can also help if you are a grandparent or other family member seeking advice about the care of a child.

Children’s matters can cover a wide range of issues including:

• who a child will live with/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;
• matters relating to health care or education.

Under Family Law legislation, all decisions about parenting arrangements must be made in the best interests of the child. Under the Family Law Act, 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 of course 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.

How can parenting arrangements be 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 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. A parenting plan can be registered with the Court but 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. Parenting orders can include people who are not actually a parent.

Court Proceedings

Before applying to the Court for parenting orders you will be required to attend Family Dispute Resolution, unless an exemption applies. 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 the Court can properly hear your matter). In order 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.

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

We understand that there are many dynamics within a family unit and that no two families are alike. Parenting matters can be fraught with emotion and conflict. Retaining an experienced family lawyer to provide structured advice and help you navigate this complex area can assist you to make informed and workable decisions that are in your children’s best interests.

If you need advice or assistance, contact [email protected] or call 1300 110 080 to speak to an expert.