Children’s Issues

Agreeing on new care arrangements for your children after separating from your partner can be complicated and emotionally challenging. We can provide you with important legal guidance during this time and can also help if you are a grandparent or other family member seeking advice about the care of a child.

Family law children’s matters cover a range of issues including:

who a child will live with 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
matters relating to health care or education

Family law and parenting matters

Under family law legislation, decisions regarding parenting arrangements must always be made in the best interests of the child. The primary considerations in deciding what is in the best interests of a child are the benefit of children having a meaningful relationship with both parents, and the need to protect them from harm. Greater consideration is given to the need to protect children from harm.

There is a presumption that shared parental responsibility is best for the child, but this may not be so in all cases. Parental responsibility refers to the duties, power, and authority that parents have in relation to their child. Shared parental responsibility means that parents are required to consult each other regarding long term decisions for the child and does not necessarily mean that the child will spend equal time with each parent. A number of factors are considered in determining the children’s living arrangements.

How are parenting arrangements made after separating?

It is usually best if parents come to an agreement between themselves about the ongoing care of their children. They can have informal arrangements in place or make a parenting plan or parenting orders.

An informal agreement is simply an arrangement between the parties that is not documented. A parenting plan is a written agreement documenting the arrangements agreed between the parties. A parenting plan can provide more structure than an informal arrangement. It 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. Parenting orders may also include people who are not actually a parent.

If the parties cannot agree on parenting arrangements, the court will need to determine the matter and will make the parenting orders.

Grandparents’ rights

Occasionally, a grandparent may have concerns for the welfare of a grandchild or be denied contact with the child. This might happen if a child’s parent suffers from health issues or mental illness, a relationship breaks down between the child’s parent and grandparent, or the child’s parents separate which results in one parent refusing a grandparent contact.

If you have been denied access to your grandchild and attempts to negotiate with the child’s parents or carers have been exhausted, our family law team can assist you with taking the next steps.

There is no automatic right for a grandparent to have contact with a grandchild, however family law legislation recognises the right for a child to have a relationship with people who are meaningful in their life. These provisions specifically recognise grandparents who may apply to the court for certain orders if family members cannot reach a resolution regarding children. The overriding principles in determining such matters will always focus on the best interests of the child.

Family Dispute Resolution

Parties to a parenting matter must make a genuine effort to resolve their dispute before an application can be made to the court. Unless there are extenuating circumstances, the parents must first attend family dispute resolution. This is a type of mediation used to encourage the parties to negotiate a resolution without going to court.

The mediation is conducted by an accredited family dispute practitioner whose role is to help the parties cooperate and explore options for workable parenting arrangements that are in the best interests of the child or children.

If an agreement is reached, a parenting plan can be developed, or consent orders filed with the court.

Court proceedings

If family dispute resolution does not resolve your parenting 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 the court can properly hear your matter). 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 9546 8155 for expert legal advice.