Parents have a responsibility to try to agree to the care arrangements for children following the breakdown of a relationship or marriage. Parents should decide with whom the children should live and the circumstances under which the children will spend time and communicate with the other parent. The child’s best interests must be at the forefront of decisions made by parents and is the principle that directs the Court. Every child has a right to know and spend time with their parents and other people important to them, including extended family. The only exception to this right is if there is a risk of abuse or harm, in which case, the outcome that best protects the child will be selected.
Were there are no parenting orders in place, both parents have parental responsibility for the children. Ideally, decisions are best made by both parents. They should consult the other before acting on long term issues affecting the children including schooling, name changes, health decisions, religion and cultural expression.
In many instances, parents face complex disagreements about what is in the best interests of their children. There are a range of options available to assist parents in reaching an agreement about how the children are raised and cared for. Negotiation, Mediation and Collaborative Practice are useful tools in these matters.
What kind of agreements can we make?
Consent orders are the most common way of formalising agreements about the care of children. Once you’ve reached an agreement, you can ask the court to make orders by consent. The benefit of doing such is that the agreement becomes a legally enforceable document.
The Registrar must be satisfied that the orders sought are reasonably practicable and in the best interest of the children. The court also requires a specific document to be completed relating to parenting matters, telling the court abut any risk to the children in the parenting arrangements agreed between the parties.
Consent orders carry the same weight as a ruling made by a judge, with legal consequences should one party breach the order. They are a cost-effective way of documenting an agreement about the care of your children.
The care arrangements for children can also be set out in a parenting plan. This agreement differs to court orders as it is not legally enforceable, however, it sets out more general details about the arrangements parents may make about their children.
What if we can’t reach an agreement?
If parents can’t reach an agreement about the care arrangements for their children, it is sometimes necessary to apply to the Federal Circuit and Family Court of Australia for orders. This is especially applicable where one parent has done something without the other parent’s consent or is refusing to return the children. When matters are urgent, the court will hold an interim hearing and your lawyer will argue your case for you that day, based on the documents prepared with you.
The best interest of the child is at the heart of all decisions making about children under the Family Law Act. When parents cannot agree about what is best for their children, the court is guided by certain principles and will consider a number of factors including:
The benefit to the child of having a meaningful relationship with both parents;
The need to protect the child from physical or psychological harm from being exposed to about, neglect or family violence;
Any views expressed by the child (taking into account their age, maturity and possible influences upon them in expressing views);
The nature and the child’s relationship with each of the parents and other people important to their care, welfare, and development;
The extent to which the parents have participated in the care of the child;
The extent to which each of the parents has met their obligation to maintain the child;
The likely effect on the child of any changes to his or her circumstances, including separation from a parent, sibling, or other important person;
Any practical difficulties relating to the child maintaining a relationship with each of the parents;
The capacity of the parents or others important to the child, to provide for the needs of the child (including emotional and intellectual needs);
The maturity, sex and lifestyle and background of the child;
If the child is Aboriginal or a Torres Strait Islander, the important of maintaining the child’s cultural heritage;
The attitude to the child and to the responsibilities of parenthood, shown by each parent;
Any family violence; and
Other matters the court may deem to be relevant.
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