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Child custody and parental responsibility

The Family Law Act states that parents have shared parental responsibility unless there are good reasons for giving one parent primary or sole responsibility.

These days, family law prefers the term parenting arrangements to the term child custody.

Often, shared parental responsibility is the starting point for parenting arrangements. That is, whether both parents should have equal shared parenting responsibility. A court will consider the best interests of the children, whether there has been any abuse or violence, and the benefit to the child in having a meaningful relationship with both parents.

Parental responsibility doesn’t mean that both parents get to have equal time with their children. It’s about the parents being able to make long-term decisions for the children; for example, schooling, medical treatment, and religion. One parent may spend less time with the children due to work commitments or location.

Parental responsibility exists until each child reaches the age of 18.

Shared care and parental responsibility can be difficult. You and your former partner may have different ideas about what’s best for the children and what’s best in your situation. Using a lawyer helps to work through these issues and often reduces conflict. We can help you make parenting arrangements for your children.

If you agree with your former partner on parenting arrangements

If you’re able to reach an agreement, you and your former partner may avoid going to court.

Negotiating parenting arrangements can be a long and challenging process, but if you’re able to reach an agreement, you and your former partner may avoid going to court. Not only will this make the process quicker and less expensive, it will also spare everyone the emotionally draining experience of court proceedings.

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If there’s disagreement on parenting arrangements

Sometimes the only option is to apply to a court for parenting orders, which set out the responsibilities of both parents: their duties, powers, authority, and responsibilities for their children.

Try as you may, sometimes it’s impossible to agree on parenting arrangements. Tension escalates with conflict and stress, and worse, it’s taking a huge toll on the children.

If you’re at an impasse or have exhausted other options , sometimes the only option is to apply to a court for parenting orders. Parenting orders set out the parenting responsibilities of both parents: all their duties, powers, authority, and responsibilities for their children.

A parenting order may deal with other issues, including:

  • Where the children will live
  • How they will spend their time with each parent
  • Allocation of children’s expenses
  • How the children will communicate with their parents when not in their care
  • Other factors concerning their care, welfare, or development

A court will attempt to do this, in keeping with the best interests of the children.

If you apply to a court to make orders, you’ll need evidence, usually in the form of documents and witness testimony.

It takes time to locate and prepare the evidence and to develop legal arguments. The legal costs can quickly add up, and you need to be aware that taking legal action will also come with a price tag.

In deciding on parenting orders, the court will consider a wide range of factors, including:

  • The best interests of the children
  • The ability of the children to have relationships with both parents
  • The wishes of the children
  • Expert opinions, for example from child psychologists and family counsellors
  • Any practical difficulties, for example, the distance between the parents’ homes
  • History or suspicion of family violence or abuse
  • Whether the children have been living with anyone else, for example, grandparents

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Frequently asked questions

Parenting orders remain until the child turns 18 years old, they are adopted, marry, or commence a de facto relationship. The orders don’t change unless a party applies to a court for a variation.

Courts are usually reluctant to vary orders, so there must be an excellent reason. But if one party isn’t complying with the orders, the other party can apply to the court for enforcement.

Parenting orders are a highly complex and sensitive area of family law. We appreciate the difficulties of the process and the need for sensitivity and understanding. We’re also experts in parenting orders. Contact us to find out more and to arrange your obligation free first interview.

If you’re planning to relocate, try and discuss the issue with your former partner. You may be able to reach an agreement and then consent to vary any court orders.

Relocation is a significant change in the lives of your children, whether it’s across the city, to a regional area, interstate or abroad.

If there are parenting orders in place, you will need to seek permission from the other parent (or the court if they refuse) to relocate. If the relocation is likely to cause significant disruption to the amount or quality of time that the other parent can spend with the children, the court may not allow you to relocate.

Relocation is often a complicated issue. It’s best to seek legal advice to work out your options and how to approach it with your former partner.

We can help you apply to a court for an order that prevents a passport being issued to your child, or that prevents your child from being taken out of the country.

If your former partner wants to take your children overseas, you may be reluctant to agree, especially if there’s a risk or suspicion that the children won’t return. Some jurisdictions may not enforce Australian court orders, which can also cause concern. If you’re worried about your children being taken overseas without your permission, you’ll need urgent legal advice. We can help you apply to a court for an order that prevents a passport being issued to your child, or that prevents your child from being taken out of the country.

If you have a parenting plan in place but no consent orders, it’s worth considering applying for orders to ensure you get adequate time with your children over the summer.

The summer school holidays are an important time of year for children, especially school children. The extended break is an opportunity to spend more quality time with parents, especially after separation or divorce. It’s no coincidence that the summer holidays can attract more conflict than any other time of year.’

If you have a parenting plan in place but no consent orders, it’s worth considering applying for orders to ensure you get adequate time with your children over the summer. The lead-up to Christmas is the busiest time of year for courts making these orders, so you’ll need to consult with us at least a few months in advance.

Most of the time, it’s not necessary to appoint an Independent Children’s Lawyer (ICL). However, a court will make an appointment in some situations.

These include:

  • Where there may be abuse or neglect
  • Where there is significant conflict between the parents
  • Where older children have indicated how they want to divide their time between the parents
  • Where there may have been family violence

Any party can apply to a court to appoint an ICL. And even if the parties don’t apply, a court can appoint an ICL if it thinks the children (and the court) would benefit from an honest broker.

The primary role of the ICL is to ensure the child’s best interests are represented and taken into account. As part of our family law team, we have a highly experienced Independent Children’s Lawyer who can provide you with further information about the role of ICLs.


Grandparents’ rights

In most cases, the children have a right to communicate and have a meaningful relationship with their grandparents. If that’s not happening, you can apply to a court to make orders allowing you to spend time with your grandchildren.

If you’re a grandparent and you’re concerned about the safety and welfare of your grandchildren, or you’re worried that you’ll no longer see your grandchildren, we can help.

Your grandchildren may have lived with you. You may worry about their safety. These are grounds to apply to a court for an order that gives you parental responsibility. The court will consider the best interests of the children when deciding whether to make these orders.

Over the years, we’ve provided advice to many grandparents who have wanted to know more about their legal rights and how best to support their grandchildren. We can help you, too. to arrange an obligation free first interview. We’ll review your situation and discuss your options.

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