Children can be greatly affected by the separation of their parents and making decisions about what parenting arrangements will be in their best interests can often be difficult and complicated. In Australia, parenting matters are governed by the Family Law Act 1975 and is primarily focused on determining what is in the children’s best interests.
This legislation sets out a range of factors that the Court must consider when making orders about who the children should live and spend time with (noting that in Australia, the language of the legislation no longer includes notions of ‘custody’ or ‘access’). These factors include protecting the children from harm, the children’s views, the nature of both parents’ relationship with the children, the needs of the children (including their developmental, psychological and emotional needs), both parents’ capacity to care for the children and any other relevant factor. In addition to determining care arrangements for the children, another main issue that must be decided is whether the parents should have equal shared parental responsibility or whether one parent should have sole parental responsibility.
Parental responsibility is the ability to make decisions about the long-term care, welfare and development of the children, including making decisions about their education, health, religious and cultural upbringing, name and changes to the children’s living arrangements. Parenting arrangements can be reached between parents through negotiation, family dispute resolution and mediation. If parents are able to reach an agreement without protracted and costly litigation, they can document this agreement in a Parenting Plan or have Consent Orders made by the Court.
In circumstances where parents are unable to reach an agreement, then proceedings can be commenced and the Court will make a determination on any issues in dispute. We have experience in assisting our clients with all aspects of parenting matters, including matters that involve allegations of family violence and child abuse, relocation, surrogacy, unlawful removal of children and gender dysphoria. It is important to seek advice from a family lawyer when you are anticipating separation, or as soon as possible after separation, as the arrangements that may be made for the children straight after separation may affect your case.
We provide specialist advice on parenting matters, helping separated parents navigate complex decisions about their children’s living arrangements, time with each parent and making long-term decisions, with the children’s best interests at the centre of every matter.
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In Australia, parenting arrangements (about who the children of separated couples should live and spend time with, noting that in Australia, the language of the legislation no longer includes notions of ‘custody’ or ‘access’) are determined based on what is considered to be in the best interests of the child or children involved. The Family Law Act 1975 (Cth) outlines the principles that guide courts in making decisions about parenting arrangements. When considering what is in the children’s best interests the Court will consider a range of factors including the need to protect the children from harm, the children’s views, the nature of both parents’ relationship with the children, the needs of the children (including their developmental, psychological and emotional needs), both parents’ capacity to care for the children and any other relevant factor.
Parental responsibility is the ability to make decisions about the long term care, welfare and development of the children, including making decisions about their education, health, religious and cultural upbringing, name and changes to the children’s living arrangements. The law has previously encouraged equal shared parental responsibility, where both parents are involved in making major decisions regarding the child’s upbringing, such as education, health, and religious upbringing. However, this did not necessarily mean equal time or shared physical custody. Recently, amendments have been made to the Family Law Act, meaning there will no longer be a presumption that both parents have equal shared parental responsibility.
Parents are encouraged to reach agreement on parenting arrangements outside of court through negotiation, mediation, and collaboration. There are several methods to consider for reaching parenting agreements without going to court, such as:
1. Negotiation Between Parents: Open and respectful communication between parents and/or their lawyers can often lead to agreements on parenting arrangements. Discussing the child’s needs, schedules, and preferences can help in finding common ground.
2. Family Dispute Resolution/Mediation: Family dispute resolution (FDR) or mediation is a process where an impartial family dispute resolution practitioner or mediator helps parents discuss and negotiate parenting arrangements. This process assists in finding mutually acceptable solutions and reaching agreements without going to court. Mediators can provide guidance and facilitate discussions. Unless there are exceptional circumstances, such as, risk and urgency, the parents must attempt a Family Dispute Resolution before commence parenting proceedings.
3. Parenting Plans: Parents can create a parenting plan, which is a written agreement that outlines the agreed-upon arrangements for the children, including living arrangements, schooling, health, and visitation schedules. While not legally binding, a parenting plan can be a practical and flexible way to formalise agreements between parents.
4. Using Support Services: Accessing support services such as family relationship centres, community legal centres, or parenting support organisations can provide guidance, information, and resources to assist parents in negotiating and reaching agreements.
5. Legal Advice and Consent Orders: Seeking legal advice from a family lawyer is highly recommended so you can understand the legal implications of parenting arrangements. If parents reach an agreement, they can formalise this by applying for consent orders through the Family Court or Federal Circuit Court of Australia. Consent Orders are legally binding and enforceable by law.
6. Collaborative Law Practice: Collaborative law involves both parties and their lawyers working together to negotiate an agreement outside of court. The focus is on achieving a mutually beneficial outcome without resorting to litigation, which can be costly and lengthy.
7. Parenting Coordinator: Parents may decide to work with a parenting coordinator, a qualified professional who assists in resolving disputes and facilitating parenting arrangements in a non-adversarial manner.It’s important to note that reaching an agreement outside of court can save time, reduce conflict, and give parents more control over the outcome. However, in situations involving family violence, child abuse, or where there is an imbalance of power, seeking legal advice and protection for the safety of all involved parties is crucial.
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