Children and parenting
Following separation, parents will often need to make important decisions about their children’s care and future arrangements. Navigating these decisions can be emotionally challenging and complex. There are several ways parenting issues can be resolved, including through informal discussions, lawyer assisted negotiation and mediation, family dispute resolution, mediation, collaborative practice and where agreement cannot be reached, court proceedings. The most appropriate pathway will depend on your family’s circumstances and the issues in dispute.
Our experienced family lawyers can help you understand your options, develop an appropriate strategy and work towards resolving your parenting matter as efficiently and constructively as possible.
What is parental responsibility?
Section 61C (1) of the Family Law Act 1975 (Cth) (Act) provides that each parent of a child under the age of eighteen has parental responsibility for that child. That responsibility continues regardless of any change in the parents’ relationship, such as if the parents separate, or if one or both parents marry or remarry.
“Parental Responsibility” is defined in section 61B of the Act as: “all duties, powers, responsibilities and authority which, by law, parents have in relation to children.” Parental responsibility is not a new concept and has been defined in the Act since 1996.
Unless affected by a court order, each parent continues to have the duties, powers, responsibilities and authority to make decisions relating to the care, welfare and development of their child after separation.
Parenting arrangements or parenting agreement
Following separation, parents will need to make important decisions about their children’s care arrangements. Parents will also need to decide how they will communicate, exchange information about their children and resolve any disagreements that may arise.
Every family is different and there is no standard arrangement that applies when parents separate.
Where parents can reach agreement, their parenting arrangements may be recorded in a parenting plan or, if they wish to make their agreement legally enforceable, formalised by consent orders.
Where agreement cannot be reached, an application may be made to the court for parenting orders.
Some of the parenting matters that parents will need to consider include:
- where the child will live;
- how the child will spend time with each parent, their grandparents and other significant people;
- how the child will spend school holidays, birthdays and special occasions;
- changeover arrangements;
- schooling and education;
- medical treatment and health care;
- religious and cultural upbringing;
- how decisions about major long-term issues will be made;
- how overseas travel will be managed and who will retain the child’s passport; and
- the child support arrangement best suited to their family.
Parenting plan
If you and the other parent reach agreement about your children’s care, you can record those arrangements in a parenting plan.
A parenting plan is a written, signed and dated agreement between the parents of a child that is made free from any threat, duress or coercion. Parents can enter into a parenting plan without the court’s involvement.
Section 63C(2) of the Act provides that a parenting plan may deal with matters including:
- parenting arrangements, such as, who the child lives with, the time the child spends with another person and arrangements for communication;
- the allocation of parental responsibility and how parents will consult with each other when making decisions concerning their children;
- maintenance of the child;
- the process for resolving any disputes that may arise in relation to the parenting arrangements; and
- any other aspect of the care, welfare and development of the child.
A parenting plan can be a practical option for parents to record their agreed parenting arrangements where they do not wish to formalise their agreement by way of consent orders.
A parenting plan may be suitable where parents can communicate and cooperate effectively regarding parenting arrangements. Parenting plans also provide flexibility, allowing parents to update their arrangements as circumstances change over time.
A parenting plan is not legally enforceable in the same way as parenting orders. However, it may be considered by the court in future parenting proceedings. There is also no cooling-off period associated for a parenting plan. Therefore, it is prudent to obtain legal advice before entering into a parenting plan.
At Arnold Hills, we can help you work towards reaching agreement about your parenting arrangements. Once agreement is reached, we can advise you on the most appropriate way to document those arrangements and, if a parenting plan is suitable, prepare a parenting plan that reflects the arrangements you have agreed.
Consent orders
Parents can choose to formalise their agreed parenting arrangements by applying to the Federal Circuit and Family Court of Australia for parenting orders by consent.
Consent orders are legally binding and enforceable. They can provide greater certainty about your children’s parenting arrangements and reduce the scope for future disagreement. Once made, each person to whom the orders apply must comply with them.
The court will not automatically make parenting orders simply because the parents have reached agreement. Under section 60CA of the Act the court must regard the best interests of the child as the paramount consideration when deciding whether to make a parenting order.
Where parenting orders are sought by consent, the court must still be satisfied that the proposed orders are in the child’s best interests. When considering consent orders, the court may, but is not required to, have regard to all of the matters set out in section 60CC of the Act.
At Arnold Hills, we can help you navigate the different pathways available to reach agreement about your parenting matter. Once agreement is reached, we can advise you on the proposed orders, prepare the Application for Consent Orders and proposed parenting orders, and file the required documents with the court.
Court proceedings: what happens when parents cannot agree on parenting arrangements?
Where parents cannot agree, or urgent court intervention is required, it may be necessary to apply to the Federal Circuit and Family Court of Australia for parenting orders.
Before commencing court proceedings, parties are generally required to comply with the court’s pre action procedures, which include making a genuine effort to resolve the dispute and attempting Family Dispute Resolution unless an exemption applies.
An exemption may be available in certain circumstances, including where the application is urgent, the matter involves family violence, child abuse or risk, if one party is unable to participate effectively in Family Dispute Resolution or another statutory exemption applies. Whether an exemption is available will depend on the circumstances of the case. It is therefore prudent to obtain legal advice.
At Arnold Hills, we can advise you on whether court proceedings are necessary, assist you with meeting any pre-action requirements or with seeking an exemption where appropriate. We can also prepare and file your court documents and represent you throughout the proceedings.
Where a matter is urgent or involves concerns about family violence, child abuse or other risks to a child, we can advise you on the steps available to seek urgent parenting orders.
How a court determines what is in a child’s best interests?
When deciding whether to make a particular parenting order under the Act, the court must regard the best interests of the child as the paramount consideration.
Section 60CC of the Act sets out the matters the court must consider when determining what is in a child’s best interests. These include:
- what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of the child, and each person who has care of the child;
- any views expressed by the child;
- the developmental, psychological, emotional and cultural needs of the child;
- the capacity of each person who has, or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
- the benefit to the child of being able to have a relationship with the child’s parents and other people who are significant to the child, where it is safe to do so; and
- anything else that is relevant to the particular circumstances of the child.
When considering what arrangements would promote the safety of the child and each person who has care of the child, the court must also consider any history of family violence, abuse or neglect involving the child or a person caring for the child, and any family violence order that applies or has applied to the child or a member of the child’s family.
Additional considerations also apply with respect to Aboriginal or Torres Strait Islander families.
Speak with Arnold Hills, parenting and child custody lawyers in the Hills District
We are experienced child custody lawyers that can advise you on parenting arrangements following separation.
After assessing your matter, we will advise you on the most appropriate dispute resolution pathway suited to your family. Our aim is to help you resolve your child custody matter by agreement through negotiation, mediation or collaborative practice where appropriate, while keeping your family out of court.
Once agreement is reached, we will assist you with recording and formalising your parenting agreement. This can be done by way of a parenting plan or consent orders.
We can also advise and represent you where court proceedings are required. We are experienced in representing clients before the Federal Circuit and Family Court of Australia in complex parenting matters involving safety and risk issues, urgency and family violence.
We also advise and represent clients in matters where parenting orders are not being complied with by the other parent.
We assist clients throughout the Hills District, including Castle Hill, Norwest and Rouse Hill, as well as clients across Sydney, with parenting arrangements, parenting plans, consent orders and parenting proceedings.
Contact Arnold Hills to arrange a confidential consultation about your parenting matter.
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