A relationship breakdown can be very complex when there are children involved. Agreeing on new care arrangements in changing and unfamiliar circumstances is difficult and can be emotionally challenging for all concerned.
Our experienced and compassionate family lawyers can guide and support you through this process. We can provide you with important legal advice about your parenting matter and can also help if you are a grandparent or other family member seeking advice about the care of a child.
The best interests of the children.
The Family Law Act focuses on serving the best interests of the children and the rights of children to have an ongoing relationship with both parents. This is so that separating from your partner or spouse does not mean that you are separating from your child or children.
In considering what may be the child’s best interests, the Court’s primary considerations are:
- to protect children from physical and psychological harm, including children seeing family violence, being neglected or being physically or psychologically hurt; and
- the benefit of the child having a meaningful relationship with their parents.
Greater consideration is given to the need to protect from harm.
Other important consideration may be:
- How much time each child has with their parents;
- The extent that each parent has been involved with decision making;
- Other significant people in the child’s life, including grandparents, siblings, step siblings, other relatives;
- Whether the parents can provide for the children’s physical, emotional, psychological and intellectual needs;
- Any other considerations that the Court thinks fit.
Although the terms ‘custody’, ‘residence’, ‘contact’ and ‘access’ are no longer used much by lawyers today, the issues behind the jargon are still on the top of the list of concerns for separating couples, namely:
- Who will the child or children live with?
- How will they spend time with the other parent?
- How will both parents be kept in the loop in regard to important decisions such as education and health?
What does shared parental responsibility mean?
Parental responsibility refers to the duties, power, and authority that parents have in relation to their children. Under family law legislation there is a presumption that shared parental responsibility is best for a child, but this will not be the case in all situations. Shared responsibility means that both parents have legal rights and responsibilities towards the child and are required to consult each other and have an equal say in long-term decisions for the child in areas such as health and education.
Shared parental responsibility does not necessarily mean that a child will spend equal time with each parent. Even if the child lives with the other parent, you may still have shared parental responsibility. The Court will consider whether the time serves the best interests of the child and whether it is practical. For example, the Court may order substantial and significant time be spent with the other parent, which may translate to 4 nights per fortnight rather than 7 nights.
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 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.
Adoption is the process of formally transferring parental responsibility from a child’s birth parent/s, or person with responsibility for the child, to the adoptive parent/s. Parental responsibility includes the rights, obligations and duties owed by a parent to his or her child. It involves important life decisions such as education, religion, and health-related matters.
If you are considering adopting a child, you should contact an accredited agency which will provide comprehensive information regarding the process. Applicants will need to provide significant personal and other information. We can assist with the adoption process and help you to navigate the legal aspects.
Why use a lawyer?
We understand that starting the process to make parenting arrangements may seem like a labyrinth that you may feel lost in.
As lawyers experienced in this process, we can tailor our advice to you with regards to the complexities of your circumstances, and guide you through what can be a stressful and confusing process. We can help take the heat off a difficult emotional situation, negotiate on your behalf, and help you obtain the best possible result for your children. And if it comes to court, we are deeply familiar with the court system and can use our experience to your advantage.
Going to Court
If your differences are unable to be settled, then you may need to commence proceedings in the Federal Circuit and Family Court of Australia.
In most cases, you will be required to attend family dispute resolution before applying to the court for parenting orders. If family dispute resolution does not resolve your matter, the court will hear evidence and a judge will make legally binding 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). 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 abduction) matters.