Parents are responsible for the care of their children until they turn eighteen. This responsibility doesn’t end when a relationship breaks down. After a separation or divorce, it is important to have arrangements in place for the care of any children of the relationship.
Coming to an agreement about the care of your children after separation is essential. Parenting agreements make sure you can spend time with your children and that you are involved in those important decisions like where they go to school, what languages they speak and other aspects of their education and development.
Separating parents have a duty to make a genuine effort to reach agreement about the future care of their children. Reaching agreement is not always easy, but assistance is available through Family Lawyers, counsellors, and mediators.
Our relationship is over. What should I do next?
Relationship breakdowns are stressful and especially traumatic when children are involved. You should try to come to a short-term care agreement with the other parent as soon as possible.
A short-term parenting agreement is not set in stone. It is a temporary arrangement designed to protect your children during the early stages of a separation. Maintaining a child’s routine is important during this difficult time. Some things to consider when working out a short-term arrangement include –
- Where your children will live while you are separating
- Who will remain in the family home (for the time being)
- How much time each parent will spend with the children
- How you will arrange financial support for the children
- Who will take the children to and from school and sport
- Older children have the right to be involved. Talk to them.
- Remember – a short-term arrangement is only temporary
What your short-term parenting arrangement looks like will depend on how well you get on with the other parent. It is best if both parents can talk through the issues and cooperate but unfortunately, that is often impossible.
Parents who are having trouble working out a short-term care arrangement within a reasonable time frame can ask a Family Lawyer for assistance.
Do I have to go to court?
You really don’t want to be dragged through the courts unless you are left with no other option. We will work with you to keep your Family Law matters out of the courtroom unless we are left with no other choice. There are a few options to help you come to a parenting agreement without going to court including mediation, negotiation, dispute resolution and child-inclusive processes.
What if I am the victim of domestic violence?
If you or your children have been the victims of domestic violence, mediation is often not an option. Our Family Lawyers are experienced in domestic violence cases and understand that acting quickly is essential. It is highly unusual for courts to rule in favour of an equal parenting agreement if there has been a history of domestic violence.
If you have experienced threatening behaviour, verbal abuse or violence in the past and fear that it will happen again when you try to leave your partner we can help you obtain protection for both yourself and your children. If you fear for your family’s immediate safety contact the police on 000. The Police will be able to take out an Apprehended Violence Order (AVO) for your protection.
Our Family Lawyers are available 24/7 in urgent situations to make sure you have the legal advice, protection and support you need.
What if my child custody case ends up in court?
Whether you are married, de facto, same-sex or adoptive parents, child custody matters are dealt with in either the Local Court, Family Court and the Federal Circuit Court.
Family Law courts focus on what is in the best interest of the child. The court presumes that shared custody (equal time with each parent) is generally in the child’s best interest.
However, a history of domestic or family violence in a relationship, or drug and alcohol abuse will have a significant influence on any court’s decision. Each parent’s lifestyle and relationship with the child will also be considered. Some of the considerations include –
- A parent’s ability to provide financial support
- A parent’s ability to provide emotional support
- A parent’s lifestyle and parenting history
- Anything that will stop a parent spending time with their children
- Whether the parents can communicate effectively
- A child’s desire to stay with a certain parent
- An older child’s relationship with each parent
What are “the best interests of the child?"
When deciding to make parenting orders the Court regards the best interests of the child as the most important consideration (s 60CA of the Family Law Act)
In determining the child’s best interests some of the considerations are –
- That the child has the benefit of a meaningful relationship with both parents
- That the child is protected from physical harm, family violence, neglect or abuse
- That parents fulfill their responsibilities for the welfare and development of their children
- That the child can reach their full potential, physically, emotionally and at school
- That the child has a right to enjoy and be connected with their cultural background
The legislation clarifies that the primary consideration to be given the greatest weight by the Court is the need to protect the child from harm.
Who decides what’s best for the child?
Care arrangements for children under eighteen may simply be a verbal agreement between the parents. It is, however, a good idea to put any verbal parenting agreement in writing as circumstances may change and a previously amicable arrangement can turn bitter overnight.
Older children are entitled to choose where they would prefer to live, however for younger children the parents make that decision on their behalf. Where there has been a history of domestic violence or the issues are complicated the courts will make the ultimate decision about parenting arrangements.
What is a Parenting Plan?
A Parenting Plan is an agreement in writing about parenting arrangements for children under 18. Parenting Plans are a quick and inexpensive way to put informal arrangements in writing so that they are clear and easy to follow.
Unlike orders made by the court, a Parenting Plan is not a legally enforceable agreement. Parents who seek enforceable parenting arrangements require court orders. If you are unable to reach an agreement or require something that is enforceable our Family Lawyers can prepare the necessary documents for Consent Orders.
What are Parenting Orders?
To ensure a parenting arrangement is legally enforceable you can apply to the Family Court for Consent Orders. They are called consent orders because they are made with the consent of both parties.
Settling parenting matters by Consent Orders is quicker, less expensive and much less stressful than asking the Court to decide. Our experienced Family Lawyers can help you reach an agreement with the other parent. Even in difficult matters, it is possible to reach an agreement if both parents are prepared to negotiate and keep the child’s best interests as the primary focus.
What are Pre-Action Procedures?
Before commencing a parenting case, you are generally required to attend compulsory dispute resolution or mediation in an attempt to resolve the dispute. If mediation is not successful or one of the parties refuses to attend, the mediator will issue a section 60I certificate.
This certificate is required to be filed together with an initiating application seeking a parenting order. If you reach an agreement at mediation, you can enter into a parenting plan in terms of s.63C of the Family Law Act or alternatively, apply for consent orders.
If an agreement is not reached at mediation, parties should give each other written notice of their intentions to file a Court application. If an agreement cannot be reached as a result of further negotiations, parties can then seek the assistance of the Court.
In parenting matters, the duty of disclosure extends to and covers the exchange of documents possessed or controlled by both parties relevant to the issues in dispute. This includes medical reports, letters, and other relevant information.
Are there any exceptions to Pre-Action Procedures?
Alternative dispute resolution is usually required before you can file an application for Parenting Orders. In special circumstances, you may not be required to undergo alternative dispute resolution. For example –
- Where the matter involves child abuse
- Where there would be a risk of child abuse if the application was delayed
- Where there has been family violence by one of the parties
- Where there would be a risk of family violence if the application was delayed
- Where the application is made in circumstances of urgency
- Where one or more of the parties is unable to participate (incapacity, remoteness)
To apply for an exception, you need to file an affidavit together with the initiating application. The affidavit needs to outline why a section 60I certificate has not been included with the application. A registrar of the court will then assess whether or not an exception will apply in your circumstances.
Who can apply for Parenting Orders?
A Parenting Order in relation to a child may be applied for by –
- Either or both of the child’s parents
- The child
- A grandparent of the child
- Any person concerned with the care, welfare or development of the child
Most applications for parenting orders are done by a parent. Parents include biological parents, adoptive parents, parents of IVF children and parents of children born under a surrogacy arrangement.
Applications for Parenting Orders by children are not common, mainly because children who have enough maturity and independence to seek Orders themselves would have little reason for needing Parenting Orders.
The grandparent of a child has been specified in the legislation as being able to apply for a Parenting Order since the year 2000. Grandparents could previously make applications under the category ‘any other person concerned with the care, welfare or development of the child’ however, a separate category for grandparents has been inserted to remove any possible doubt. Applications by grandparents are common.
Applications by any other person concerned with the care, welfare or development of the child have proven to be the most difficult category.
The bottom line will always be that a Parenting Order will not be made, no matter who has made the application if it is not considered by the Court to be in the best interests of the child.
We are here to help
At Fourtree Lawyers we aim to help you resolve child custody and parenting disputes quickly, cost-effectively and preferably out of court. This usually means that negotiation will be the first step and if that fails either private or court-appointed mediation. If all else fails, or if the matter is urgent then court action may be the most appropriate approach.
Our Family Lawyers are experienced in dealing with child custody cases. Whether you are considering commencing child custody proceedings, or proceedings have been issued against you there is a range of issues you need to consider. Child custody ‘battles’ can be daunting. Our lawyers work hard to make this process as simple as possible.
If you require assistance with a child custody matter or parenting dispute, our experts at Fourtree Lawyers can help. Call us today on 1300 529 444 to speak with one of our Child Custody Lawyers
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