Children’s Issues

Children are often said to have rights under the Family Law Act, such as the right to a meaningful relationship with both parents. This comes from the law stating that the Court should decide a dispute about the children’s arrangements according to what is in the best interest of the child. When deciding what is in the best interest of a child, the law says that the primary considerations are;

1. the benefit to the child of having a meaningful relationship with both of the child’s parents; and
2. the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

There is no provision for “parent’s rights” in parenting or child custody disputes in the law. The law is child focused.

What rights are there in family law? What are my rights as a parent?

Children are often said to have rights under the Family Law Act, such as the right to a meaningful relationship with both parents. This comes from the law stating that the Court should decide a dispute about the children’s arrangements according to what is in the best interest of the child. When deciding what is in the best interest of a child, the law says that the primary considerations are;

1. the benefit to the child of having a meaningful relationship with both of the child’s parents; and
2. the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

There is no provision for “parent’s rights” in parenting or child custody disputes in the law. The law is child focused.

What is child custody?

In today’s legal terms, you are seeking an Order that your child lives with you.

The law in Australia has moved on from using the words child “custody” and “access”, we now use the terms “live with” and “spend time with” when making Orders about the children’s time with their parents. While child custody is no longer the language used in courts in Australia, people still refer to parenting disputes as child custody disputes as they are familiar with the older language.

Often parents who seek custody of their child are seeking an Order that the child live with them for the majority of the time. Access to a child is expressed as a child spending time with the other parent.

What is parental responsibility?

Each parent naturally has parental responsibility unless a Court Order is made about parental responsibility.

This is different from custody or where the child lives with one parent. Parental responsibility means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children. This isn’t about the day-to-day decisions for a child but about making major, long term decisions for a child. Some examples are decisions about their education, religion and religious upbringing and major health decisions.

It is not automatic that where the children live with one parent, that parent with “custody” has sole decision-making power in those matters. The Court presumes that it is in the best interest of the child for the parents to have equal shared parental responsibility, unless there are reasonable grounds to believe that a parent has engaged in abuse of a child or family violence. The Court can Order that one parent has sole parental responsibility.

In today’s legal terms, you are seeking an Order that your child lives with you.

The law in Australia has moved on from using the words child “custody” and “access”, we now use the terms “live with” and “spend time with” when making Orders about the children’s time with their parents. While child custody is no longer the language used in courts in Australia, people still refer to parenting disputes as child custody disputes as they are familiar with the older language.

Often parents who seek custody of their child are seeking an Order that the child live with them for the majority of the time. Access to a child is expressed as a child spending time with the other parent.

We can help if you and the other parent are having difficulty sorting out the arrangements for the children. We can assist you with advice about all the things you need to agree upon, undertake negotiations with the other parent if things have become stuck or less than amicable, and we can help you to reach an arrangement which is workable, thorough and operates smoothly.

Parents are usually required to attend mediation in an attempt to reach an agreement about children’s matters without resorting to litigation. We can assist you with advice about what to expect at mediation, the topics you should think about and talk about, help reach solutions which will work for both parents.

If an agreement is reached, we can assist you to draw up your agreement as a Parenting Plan or Consent Order.

We can help if you and the other parent are having difficulty sorting out the arrangements for the children. We can assist you with advice about all the things you need to agree upon, undertake negotiations with the other parent if things have become stuck or less than amicable, and we can help you to reach an arrangement which is workable, thorough and operates smoothly.

Parents are usually required to attend mediation in an attempt to reach an agreement about children’s matters without resorting to litigation. We can assist you with advice about what to expect at mediation, the topics you should think about and talk about, help reach solutions which will work for both parents.

Have you read our resources for parents?

Mediation for children’s matters: What do I need to think about before mediation?

If an agreement is reached, we can assist you to draw up your agreement as a Parenting Plan or Consent Order.

Each parent naturally has parental responsibility unless a Court Order is made about parental responsibility.

This is different from custody or where the child lives with one parent. Parental responsibility means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children. This isn’t about the day-to-day decisions for a child but about making major, long term decisions for a child. Some examples are decisions about their education, religion and religious upbringing and major health decisions.

It is not automatic that where the children live with one parent, that parent with “custody” has sole decision-making power in those matters. The Court presumes that it is in the best interest of the child for the parents to have equal shared parental responsibility, unless there are reasonable grounds to believe that a parent has engaged in abuse of a child or family violence. The Court can Order that one parent has sole parental responsibility.

An agreement about children’s matters can be set down as either a;

• Parenting Plan
• Consent Order

A Parenting Plan is an agreement between the parents. It is flexible and it is not legally binding, although a court can later consider the plan. Parenting Plans are ideal for parents who are just starting to work out how to parent separately and aren’t sure what arrangements will work for their situation. If something isn’t working out for your children, then the plan can be changed to adapt to something that will work. You aren’t locked in by any formal Court Order. A Consent Order is an Order of the Court which has been consented to by both parents. The Order is much simpler to apply for than usual litigation. It is legally binding and there are sanctions from the Court for parents who do not comply with the Order. They are enforceable in Court. We can help you decide which path you wish to proceed with and draw up the necessary documents for you to enter into a Parenting Plan or apply for a Consent Order.

If you need to apply to the Court for Orders about the children’s arrangements, our experienced family law team are able to present your case to the Court and help you navigate the Court system, including preparing court documents and representing you in court hearings and at mediations.

We can give you advice about Orders which will work for your children, covering;

• parental responsibility and major decisions regarding the long term care, welfare and development of the children,
• about “equal time” arrangements, or if the children live with one parent then what arrangements might work best for them spending time with the other parent;
• progressive arrangements which move on as the children get older;
• providing for indirect time and special occasions (such as birthdays and Christmas);
• practical arrangements such as changeover arrangements;
• communication about the children; and
• travel and passports.

We listen to your goals. We understand that you don’t won’t to be in Court any longer than you have to. We represent you in a professional manner, without resorting to tactics or dragging out litigation.

We guide you through the Court’s processes, such as child conferences and family reports, evidence gathering (such as issuing subpoena’s), engaging with Independent Children’s Lawyers and provide support and guidance through dispute resolution processes, such as mediation, and fully present your case at trial (if necessary).

We make sure the Court knows about your children and the things which are important to the best interest of your children.

If a resolution can be reached, we can expertly settle a thorough set of children’s Orders to bring an end to the proceedings and reduce the potential for conflict in future with the other parent.

We have the experience to assist you with your children’s matters, including issues relating to location and recovery of children and relocating with children.

Where one parent relocates with children, without the other parent’s consent, that party can approach court seeking orders that the children be returned to the area they were removed from.

These Court orders usually require people or organisations (such as government departments like Centrelink) to give any information they have relating to the whereabouts of the parent or children and then further orders that a marshal of the Court or Federal Police officers, return the children to a specified location.

We can assist you in obtaining or opposing a relocation order, which is where one parent seeks to relocate, with the children, to another part of the state, country or world, to live.

Children’s matters are sensitive and emotional. It is an area of law that is constantly changing. Please contact us for advice specific to your circumstances.