Navigating the care arrangements for children after separation across different households can appear daunting at first.
Most parents negotiate between themselves regarding their children’s care arrangements but there are cases where some assistance does not go awry. Getting the right advice and support can help you navigate those issues or help keep negotiations on track. There are different ways you can record any agreement about children.
If negotiations do not work or there are significant risk issues involved, sometimes court proceedings are the only way to resolve any parenting matters.
What is the law around parenting arrangements?
The paramount consideration in all parenting matters is the best interests of the child.
In determining the child’s best interests, the Federal Circuit and Family Court of Australia (the Court) must consider the following primary considerations as set out in section 60CC(2) of the Family Law Act 1975 (Cth) (the Act)):
- the benefit to the child of having a meaningful relationship with both of the child’s parents; and
- the need to protect the child from physical or psychological harm from being subjected to, or exposed to abuse, neglect or family violence.
The Court must give greater weight to the child’s protection from harm.
There are also a number of additional considerations the Court take into account that are set out in section 60CC(3) of the Act. These include, but are not limited to:
- the child’s age;
- any views of the child taking into account their age and level of maturity – the Court can give any weight to this consideration;
- the parents’ ability to make decisions together and/or capacity to look after the child’s physical and emotional needs and maintain the child financially;
- the maturity, sex and lifestyle of the child, including their cultural background;
- the child’s right to enjoy their Aboriginal or Torres Strait Islander culture;
- any family violence involving the child or their family;
- the need to protect the child from physical or psychological harm from being subjected to, or exposed to abuse, neglect or family violence.
As each family and child are unique, so will the parenting arrangements.
What parenting arrangements need to be considered?
Parental responsibility
Each parent has “parental responsibility” for a child. This means the power and responsibility to make decisions for the child’s care, welfare and development.
The Court presumes that it is in the best interests of the child for their parents to have equal shared parental responsibility. This means each parent will need to consult the other on decisions about major long-term issues such as religion, school enrolment and medical treatment for the child. Other day to day decisions such as what the child eats or wears are not major long-term issues and do not require consultation with the other parent.
However, this presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence or it is not in the best interests of the child for the parents to have equal shared parental responsibility.
There are some cases where it is in the best interest of the child for one parent to have sole parental responsibility about all or some long-term issues.
Living arrangements
With whom and where a child will live and when and how often the child spend time with the other parent are also determined by what is in the child’s best interests.
If the Court orders for parents to have equal shared parental responsibility, then the Court must consider whether it is in the child’s best interests to spend equal time with each parent.
If equal time is not in the child’s best interests (for example due to the child’s age) or not reasonable practicable (for example due to the distance between the parents’ homes), the Court must consider whether it is in the child’s best interests to spend substantial and significant time with the other parent. This means not only weekend time but also time during the week so the child develops and benefits from having that parent in their day to day routine.
The Court may also find that it is not in the child’s best interests (taking into account the considerations set out above at sections 60CC(2) and (3) of the Act) or reasonable practicable for the child to spend substantial and significant time with the other parent.
Does family violence impact parenting matters?
The paramount consideration in all parenting matters is what is in the best interests of the child and giving greater weight to the need to protect the child from physical or psychological harm from family violence or child abuse.
If there are any allegations of family violence, child abuse or risk to a child, you must notify the Court in parenting proceedings.
If you or your child are at risk of family violence or abuse and are concerned about your or your child’s safety, please find further information here regarding Family Violence Intervention Orders.
What if I am not a biological parent of a child, do I have rights in relation to that child?
Only children have rights to have a meaningful relationship with both parents where that relationship does not place them at risk of harm. Parents do not have rights to their children, but rather have responsibilities towards their children and the right to ask the Court to make a decision about parenting arrangements.
However, parties who are not biologically related to a child, may have the right to ask the Court to make a decision about parenting arrangements. This is called having standing to apply to the Court as a person concerned with the care, welfare and development of the child. Generally this means grandparents or long term carers of a child.
The considerations are the same regardless of who applies to the Court – the child’s bests interests are the paramount consideration.
Coulter Legal has extensive experience with giving advice to, negotiating on behalf of, and representing in court, parties interested in the long term, care, welfare and development of the child.
How can the other parent and I negotiate?
You and the other parent can negotiate directly to reach an agreement about parenting matters. You can also participate in what is called Family Dispute Resolution (FDR) to help you and the other parent reach agreement about the children’s arrangements.
FDR is where a Family Dispute Resolution Practitioner (FDRP, who is usually a social worker and trained FDRP) helps you and the other parent communicate and negotiate to reach agreement about parenting matters.
There are privately funded FDR services and government funded services like Relationships Australia or Relationships Matters.
Even if you wanted to issues court proceedings about parenting matters, it is prerequisite that you and the other parent first try FDR unless the matter is urgent or it is not safe to participate in FDR.
Our experienced team of family lawyers can assist you during the FDR process and help you to determine if your matter is urgent and/or involves family violence and could potentially bypass the requirement to participate in FDR. We can also assist you in the “background” while you go participate in FDR.
More information about Out of Court Settlements and Dispute Resolution can be found here.
How can we record or formalise our parenting agreement?
If you and the other parent reach agreement about the parenting arrangements, these can be recorded or formalised in the following ways:
Parenting Plans (or Parenting Agreements)
A Parenting Plan is an informal, written agreement about the care of your children.
These are not legal binding which means that you can alter them at any time but allows for flexibility.
Most parents are happy with a Parenting Plan as a record of the agreed arrangements and are most effective where the parents are able to communicate effectively.
Parenting Orders
Parenting Orders are orders made by the Court that provide for the child’s parenting arrangements in a more rigid and legally enforceable way.
Parenting Orders can be made either by consent (that is both parents agree to the Court making those orders) or decided by a Judge after hearing all the evidence at a Final Hearing (or trial).
Court Orders are legally binding upon both parents which means that if a parents breaches the Orders, they can face penalties like costs orders, fine or even imprisonment.
Once Final Parenting Orders are made for the children’s arrangements, there are very limited ways that the arrangements can be varied.
Specific issues: Relocation, Vaccinations and International Family Law
Can I move interstate or overseas with the children?
Moving your children interstate, overseas or to another suburb from where they currently live is called a ‘relocation’. If you want to relocate, and the relocation is likely to impact the time the child spends with the other parent, you must have agreement with the other parent to do so. This is because deciding where a child lives is a major long-term decision, and where parents both have parental responsibility or equal shared parental responsibility, these decisions must be made by agreement.
If one parent wants to relocate the children and the other parent does not agree, the moving parent may apply to the Court for an order which permits the relocation. Similarly, if one parent was to relocate the children without agreement, the other parent may apply to the Court for an order to bring the children back to where they were living before.
Can I vaccinate my children without the consent of the other parent?
You cannot vaccinate your child without the consent of the other parent as this a is a major long-term decision relating to the child’s medical issues.
If you wish to vaccinate your child and the other parent does not agree, you can make an application to the Court seeking a Court Order allowing you to vaccinate the child provided that the vaccination is in the best interest of the child.
If you are opposing vaccination you can also make a court application seeking a Court Order to stop the other parent from vaccinating the child.
The law around vaccination is not set in stone and is case specific to the individual child’s needs and their best interests. It is vital to get reliable and accurate legal advice from an experienced family lawyer before taking any action regarding vaccinations.
International family law matters
For further information about international relocation, passports and international parenting matters, please follow this link.
How we can help
Our team of empathetic and reliable family lawyers can give you tailored advice regarding your parenting matter, help you draft Parenting Orders or represent you in court litigation.
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