Children

Children’s care arrangements following separation

Making parenting arrangements for children after a relationship breaks down can be stressful for parents, children and other family members.

Our team can assist you to navigate this complex area of law and to make parenting arrangements that are workable and, most importantly, meet your children’s particular needs and best interests.

In most cases, parents are able to agree on arrangements for the ongoing care and welfare of their children. If parents can agree on parenting arrangements, this can be documented either by a parenting plan or an application to the court for the approval of consent parenting orders.

Parenting plans are written documents setting out the agreement reached between parents for the ongoing care, welfare and upbringing of their children. Parenting plans are not approved by a court and, accordingly, are a less formal and more flexible approach to parenting matters. Parenting plans are generally suited to parents who are cooperative and have mutual trust that each will uphold the agreement reached.

Consent parenting orders are formal orders documenting the agreed parenting arrangements and must be approved by the court. As orders of the court, they are legally enforceable and must be complied with. If a parent fails to comply with the provisions of a consent order, the other party may request the court to enforce the order.

Both parenting plans and consent orders may deal with one or more of the following:

• who the children will live with and how time will be spent with the other parent, or whether the children will spend equal time with each parent
• arrangements for school holidays and special occasions such as birthdays, Mother’s Day, Father’s Day, and significant cultural or religious events
• arrangements for the children to spend time with other people who are significant in their lives, for example, grandparents, siblings, step siblings and other relatives
• which extra-curricular activities the children will attend
• overseas travel
• schooling
• Payment of children’s expenses such as school fees or uniforms
• How parental responsibility for the children will be shared (decision-making with respect to major long-term decisions as to the children’s care, welfare and development) and the form of consultation required between the parents

What is shared parental responsibility?

Parental responsibility is defined in the Family Law Act 1975 as “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”.

When a court is determining parenting matters, the Family Law Act provides a presumption of equal shared parental responsibility. The presumption is subject to exceptions such as where there are issues of family violence or abuse or there is evidence that it would not be in the best interests of the child.

Equal shared parental responsibility means that each parent is jointly responsible for significant long-term issues concerning the care, welfare and upbringing of their children such as decisions about their health, welfare, religious and cultural upbringing, and education.

In practical terms, this requires each parent to consult each other and agree about any major long-term decisions that need to be made about their children.

What if an agreement cannot be reached about parenting arrangements?

The law requires that parents make a genuine effort to resolve disputes about their children. In most cases, where parents fail to come to an agreement, they must attend compulsory family dispute resolution before taking a parenting matter to court. They must also provide notice to the other party of their intention to start proceedings before doing so.

The overriding principle considered by a court in parenting matters is that the best interests of the child are paramount. The primary considerations a court takes into account in determining a child’s best interests are:

• the benefit to a child of having a meaningful relationship with both parents
• the need to protect a child from physical or psychological harm and harm resulting from them being subject to or exposed to family violence, abuse or neglect

The court has discretion to look at a number of other considerations when determining the best interests of a child, which may include:

• any views expressed by the child
• the age and maturity of the child
• the nature of existing relationships between the child and his or her parents as well as other significant people such as siblings, grandparents and other relatives
• the extent to which each parent has already participated in the child’s life and fulfilled their obligations to maintain the child
• family violence
• any cultural matters that should be considered including a child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture
• any other matter that is relevant to the child’s best interests

Our team will aim to assist you to resolve your family law parenting matter by agreement. We have considerable family law expertise and can assist you with the following:

• to develop a parenting plan or to agree on Consent Parenting Orders
• where there are urgent issues involving children such as interim parenting orders, or recovery and location orders
• where there are child protection issues or the Department of Child Safety Services is involved
• more complex children’s issues, including relocation disputes where one party wants to move overseas or inter-state with the children
• cases relating to inter-state and overseas child abduction
• altruistic surrogacy arrangements and agreements, adoption and parentage/paternity issues

We will work with you to achieve an outcome that is tailored to the needs of your family and most importantly, is in your children’s best interests.

If you need any assistance, contact one of our lawyers at [email protected] or call (07) 3630 1649 for a no-obligation discussion and for expert legal advice.