Child Custody

Children and Separation– Parenting Arrangements

After separation the focus should be on the welfare of the children. Parents must decide about living arrangements and when the children are to spend time with each of them.

Each family is unique and arrangements for children will differ from family to family depending on the needs of the children.

If you are looking for a child custody lawyer in Sydney, or for further information in relation to any parenting matter, including child support please do not hesitate in contacting any member of our Family Law Team.

  • What is the law about Child Custody in Australia?

    Child custody is not a term used in Australia. Instead, our Australian Family Law Act 1975 focuses on:

    • Which parent will the children live with and should children live with both parents, for example, under a shared care arrangement.
    • How children can communicate with the other parent they are not living with.
    • Decision making – referred to as parental responsibility and whether that should be conferred on one parent or continue to be shared after separation.
  • What are the effects of parental conflict on children?

    • Children feel the pain of separation just as their parents do. Parental behaviour upon separation can affect how children cope with the breakup of the family unit.
    • Children are better able to cope with the changes, when parents are child focussed and can emotionally support the children.
    • Children are less able to cope where there is ongoing hostility, bitterness and anger between separated parents, such as where parents refuse to speak with the other and use their children as messengers, or one parent undermines the other parent’s relationship or parenting ability.
    • Stressed children often exhibit behavioural problems such as trouble sleeping, withdrawing from their usual activities and not doing well at school. So parents should make an effort to get along with each other as it is for the benefit of the children.

    As children become more mature, parents should listen to their child’s views and consider them where appropriate.

  • Do we have to have parenting orders?

    No, but it is advisable so that each parent knows when they are spending time with the children. This allows parents to plan ahead and plan activities or outings for the children to enjoy.

  • When should I have parenting orders made?

    Sometimes parenting orders are a necessity particularly if there is a history of family violence or abuse, child(ren) at risk, substance abuse and other issues of concern such as taking children from your care or overseas without your agreement.

    Parenting orders are enforceable by the court and often appropriate when the other parent refuses to permit you time with the children.

  • Who can apply for parenting orders?

    People who can apply for parenting Orders include either or both of the child’s parents or a grandparent of the child or any other person concerned with the care, welfare and development of the child.

  • What is a Parenting Plan?

    • A Parenting Plan is an agreement reached between parents outlining the care arrangements for their children.
    • Parenting Plans are not made in court and are not court orders.
    • Parenting Plans allow for flexibility as they do not require a court order to vary or set them aside.
    • If one parent unilaterally decides not to comply with the terms of the Parenting Plan then there is no recourse for the other parent to enforce the agreement.
    • If the matter comes before the court, the court is obliged to consider the most recent Parenting Plan, if this is in the best interest of the child, but will not enforce a parenting plan otherwise.
    • Whether a Parenting Plan is suitable largely depends on the parent’s relationship with the child(ren). A successful Parenting Plan requires parents to be flexible, reliable and cooperative.
  • Where do I start in sorting out the children’s care and time with each parent?

    Ideally parents should reach agreement in relation to the care arrangements for children on the breakdown of their relationship. Consult a family lawyer on the types of orders that you should consider and carefully consider what orders would be in the best interests of the children.

  • What if we can’t agree? What’s FDRP?

    There are many organisations with Family Dispute Resolution Practitioners (FDRP) who are able to work with families in helping parents reach agreement in relation to the care arrangements for their children.

    There are also information programs for separating parents, including those run at Family Relationship Centres, Unifam, Relationships Australia. These programs include parenting after separation, communication after separation and kids in focus and are helpful for parents in understanding their children’s needs and helping them focus on meeting those needs as parents.

    There are also private Family Dispute Resolution Practitioners and children’s psychologists and family therapists who can also provide support and guidance at this time.

    Ask one of our Family Law Team for more information.

  • What’s the next step if the parents refuse to agree about our children’s care or time with me?

    Prior to commencing any Court proceedings seeking parenting Orders, unless an exception applies – particularly in cases of family violence – both parents meet with a Family Dispute Resolution Practitioner in an effort to resolve the parenting arrangements for their children.

    The Family Dispute Resolution Practitioner issues a certificate called a Section 60I if there is no agreement reached, which must be filed with any parenting application in the Court. This certificate, amongst other things, tells the Court that the parties have not reached an agreement, made an effort to attend or whether mediation was inappropriate in the circumstances.

    If parents can reach an agreement with the assistance of a Family Dispute Resolution Practitioner or otherwise between themselves, they can enter into court orders or a parenting plan to document their agreement.

    Before entering into parenting Orders or a Parenting Plan, it is sensible to obtain legal advice as wording must reflect the exact agreement. Any breaches of Court Orders can lead to penalties and legal costs.

  • Travelling overseas with the children after divorce or separation

    If parenting Orders are in place that provide for the children to live with or spend time with both parents, then neither parent should be taking the children outside of Australia unless a Court Order permits travel or there is the authenticated written consent of the other.

    There are implications in relation to the breach of parenting orders and enforcement and contravention proceedings can be commenced against the parent in default.

  • I am concerned my ex partner might take the children overseas and not return them, what can I do?

    You can request for your children’s names to be placed on the Australian Federal Police Watchlist. This will prevent them being taken out of Australia.

    If your children do not have an Australian passport and you are concerned that your ex partner may apply for one without your consent, you can lodge a Child Alert Request with the Department of Foreign Affairs and Trade. This can be done at any Australian Passport Office or you can forward this to Passport Operations.

    If you would like assistance with this process, please contact one of the Family Law Team for assistance.

  • What happens if we have to go to court?

    Sometimes parents cannot reach an agreement in relation to the arrangements for their children and Court proceedings are required to resolve their differences.

    There is mediation available during the court process. If the matter cannot be settled during the course of the proceedings a Judge will make a decision at final hearing.

    The Court will apply the parenting provisions of the Family Law Act 1975 in reaching a decision.

    The Court will look at what is in the best interests of the child(ren) and will consider the benefit of each child having a meaningful relationship with both of his or her parents. The Court also considers the need to protect the child from physical or psychological harm and from being subjected to or exposed to abuse, neglect or family violence. If there are concerns in relation to the latter, then the need to prevent the child from being exposed to any unacceptable risk or harm is the priority.

    In some parenting matters before the Court it is appropriate for the Court to appoint an Independent Children’s Lawyer to act in the children’s best interests.

    An Independent Children’s Lawyer does not obtain instructions or act as the child’s lawyer as such but rather is independent of each parent. They will form their own view and undertake their own assessment in relation to issues concerning the child, gather information in relation to the circumstances surrounding the child and any underlying issues, and make submissions and recommendations in this regard.

    In some parenting matters extra evidence may be required, such as expert medical or forensic psychiatric evidence, all of which must be taken into account by the Court deciding what Orders are appropriate for the child(ren).

  • Does the court favour one parent over the other?

    The court is gender neutral, it is more child focused.  It is important to understand that what works for one child and family may not necessarily be in another child’s best interests. Consequently it is sometimes difficult to compare other parenting cases to your own.

  • Is shared care the same as shared parental responsibility?

    Equal shared parental responsibility relates to decisions affecting a child such as a child’s name, religion, health decisions, education, relocation with the children and other long term issues. Equal shared parental responsibility does not mean equal time.

  • What is often a “normal" arrangement after separation?

    The “normal arrangement” is not equal time with each parent, but in some circumstances equal time can work well for both the children and the parents.  What arrangements work well will depend on the individual family, including how parents communicate and get along after separation, the needs of the children including any special needs, how far apart the parents live from each other and practical issues in relation to the time it may take for children to get to and from school from one parent’s home, as well as other factors such as each parent’s working hours including shift work, business travel, etc.

  • Family violence and risk of abduction of the children.

    If there are circumstances of family violence it is important that you obtain family law advice as options may include an apprehended domestic violence Order, urgent Court proceedings, having children’s names placed on the Australian Federal Police watch list meaning that the children cannot be removed from Australia or urgent parenting Orders which would also be provided to the child’s preschool/school to ensure the safety of the children.
    Other Orders include restraints such as not consuming illicit drugs or alcohol at specified times prior to and during all times with the children or whether time with the children should be supervised.