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Children’s Issues

Our family law team will help you navigate through these difficult issues and achieve an outcome for you and family as quickly and cost effectively as possible. 

What happens to my children if I have separated?

There will be a number of issues that relate to your children after your separation. This will include where the children will live on a day to day basis, and the arrangements for the children to visit the other parent or other significant people in their lives such as grandparents and relatives.

Who gets custody?

Under the Family Law Act the terminology ‘custody’ or ‘access’ does not exist. Rather the court makes parenting orders that determine with who and where children will live and if they are not spending an equal amount of time with each parent, the amount of time that they are to spend with their other parent or other significant persons.

What is parental responsibility?

Under the Family Law Act the biological parents of children have joint parental responsibility for making all decisions regarding the children’s long term care, welfare and development. Shared parental responsibility is normally ordered by the court but there may be times when this is not appropriate.

What does shared parental responsibility mean?

Shared parental responsibility means that both parents are responsible for the long term decision making for their children including making decisions about their education, religious upbringing, use of surname, and whether a child may travel overseas or relocate to another Australian state as well as making major health decisions.

What does day to day responsibility mean?

This is a short term decision making responsibility for each parent to make short term day to day decisions for their children such as what the children wear, what the children eat and daily activities that the children may participate in. It may also include who looks after the children if the parent is at work.

What does shared care mean?

Under the Family Law Act there is a legal presumption that is in the child’s best interest to spend time on a regular basis with, and communicate on a regular basis with both of their parents. This can involve the child spending equal time with each parent. If this is not reasonably practicable then consideration is given to the child spending significant and/or substantial time with either parent. As each family is different, the arrangements for when the children spend time with the other parent will depend on a number of factors such as work schedules, geographical location of each parent, the age of the child, schooling arrangements etc.

What happens if my ex-partner and I cannot agree?

If you and the children’s other parent are unable to reach you own decisions about issues relating to your children, then we can assist you by negotiating a settlement, arranging counselling or mediation and when necessary, commencing court proceedings.

What if we are able to agree?

If you and the other parent are able to reach your own decisions about issues relating to your children, your agreement can be put in writing and filed with the court. These arrangements will be made into court orders that are binding on both parties. We recommend you formalise your agreement in this way to avoid as much as possible any difficulties in the future.

What is a parenting plan?

A parenting plan is a written document signed by both parents about arrangements for the children. However it is not binding and is not enforceable.

What about the children’s wishes?

The express wishes of children as to who they live with and spend time with are not the only matters to be considered nor are they necessary or conclusive or final. There is no magic age at which children can decide which parent they want to live with or visit. The court may place less reliance or weight on the wishes of a young child as compared to the wishes of a teenager.

There are many factors the court needs to take into account when considering what is in the best interest of a child, not just the child’s wishes.

Who is the primary carer?

The parent who has been primarily responsible during the relationship with the day to day care of the children is seen as the primary carer. This includes factors such as who has been the parent doing tasks associated with the care of children including bathing, feeding, supervising or whether this role has been shared or will be shared by both parents in the future.

What if there has been abuse and family violence?

It is recognised under the Family Law Act that there is a need to protect children from physical, sexual or emotional abuse and/or violence. Each parent has a duty to protect their children from harm or risk of harm.

What is compulsory family dispute resolution?

The Family Law Act requires parties to attend compulsory family dispute resolution before proceedings can be commenced in court for parenting orders. Compulsory family dispute resolution can also be referred to as Mediation. Once parties have attended with a family dispute resolution practitioner and discussed or attempted to discuss the arrangements for the children, a Section 60I certificate will be provided by the registered family dispute resolution practitioner. The certificate will be supplied even if the other parent refuses to participate in mediation.

Are there exceptions to attending Mediation?

Yes in some circumstances it may not be appropriate to attend compulsory family dispute resolution before you commence court proceedings. This may be in cases where there has been abuse or family violence. It may also involve an urgent application if a child is being withheld or being relocated to another city or state. It may also not be appropriate to attend family dispute resolution where one or more of the parents are unable to participate effectively due to alcohol/drug and substance abuse problems or mental health issues.

What if I want to change the existing orders?

Parents can agree to a variation of previous orders or arrangements. These changes can be formalised by way of written variation or a formal application to the court to vary previous orders. If an agreement cannot be reached about varying existing court orders, then a court case may be needed and you may need to go back to mediation as well.


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