Children’s Matters

Separating from your spouse or de facto partner can be even more complex when there are children involved. Agreeing on new care arrangements for children can be difficult and emotionally challenging. We can provide important guidance to parents, grandparents and other family members seeking legal advice about the care of a child during this difficult time. Children’s 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 health care or education.

Australian Family Law and Children’s Matters

The focus of parenting laws in Australia is the best interests of the child.

The starting point in the family law system in Australia for the past several years has been that both parents have equal and shared responsibility for their children. This presumption has meant that each parent is equally responsible for making major decisions regarding their children such as those concerning health and education. Shared parental responsibility, however, does not mean that a child will necessarily spend half of their time with each parent and this concept has often confused separating parents. Reforms scheduled to commence in May 2024 have removed this presumption of shared parental responsibility. Rather, the responsibility for long-term major decisions will be based on the best interests of the children and the children’s safety will be paramount.

The reforms introduce further changes to the Family Law Act, which we will see play out as they are introduced over the ensuing months.

How are Parenting Arrangements made?

In most cases, parents should try to come to an agreement between themselves about the ongoing care of their children, which may be through informal arrangements, a parenting plan, or parenting orders.

Parents who cannot agree on children’s arrangements, must attend upon mediation. In limited circumstances mediation can be dispensed with such as there being an intervention order in place.

An informal agreement is simply an arrangement 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.

Court Proceedings

When parties cannot agree on parenting arrangements, they may need to take proceedings to have the Court determine their dispute. In most cases before applying for parenting orders, the parties will need to attend Family Dispute Resolution. If Family Dispute Resolution does not resolve the 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 a final hearing). 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.

If you need assistance, contact [email protected] or call 03 9741 3777 to arrange a consultation with an experienced family lawyer in Werribee.