Children & parenting matters

Children & parenting matters

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Disputes about ‘parental responsibility’

The Family Law Act provides for both parents to share parental responsibility for their children. This is different to who the children will live with and the amount of time they spend with each parent. Frequently referred by parents as ‘child custody’.

See our Frequently Asked Questions for more information on ‘parental responsibility’.

Disputes about residence and/or the amount of time the child/children are to spend with each parent

One of the most important decisions parents must make when a relationship breaks down, is where the children will live and how much time they will spend with each parent. It is preferable for parents to make these decisions rather than leave it to the Courts. Our family lawyers will work with you in exploring your options including mediation, if that is your preference. However, some disputes do require a court decision. We have extensive experience in assisting parents both in and out of court to resolve their parenting issues.

Some of the options for resolving disputes are outlined below.

Parenting Plans

A Parenting Plan is a written agreement between parents. It deals with the parenting arrangements including where your children live, what time they spend with each parent, and how major long term decisions are to be made between parents (i.e. how parental responsibility is to be shared). Parenting Plans may also include child support provisions, however, you also need a separate Child Support Agreement for the provisions relating to child support to be enforceable.

A Parenting Plan is not legally enforceable. It can be changed at any time by entering into a new Parenting Plan, provided you and the other parent can reach an agreement.

Although a Parenting Plan is not legally enforceable, you should always seek independent legal advice from an experienced family lawyer before signing a Parenting Plan. This is because if your matter ends up in Court, the Court must consider the most recent Parenting Plan when making Orders with respect to the arrangements for the children.

Consent Orders

A Consent Order is also a written agreement between parents that deals with the parenting arrangements in terms of where your children live, what time they spend with each parent, and how major long term decisions are to be made between parents (i.e. how parental responsibility is to be shared).

However, unlike Parenting Plans, a Consent Order is legally enforceable once it is registered with the Court.

Agreement between both parent is required to change the Orders so it can be very difficult to change them at a later stage. The Court is quite hesitant to change a Consent Order unless there has been a significant change in circumstances or a reasonable period of time has elapsed since the Consent Order was made. For this reason, it is important that you are certain that the agreement reflects the arrangements that you want for your children on a long term basis.

To discuss the advantages and disadvantages of entering into a Consent Order or to obtain advice about parenting matters generally, please contact us.

Relocation applications

A parent needs the permission of the other parent before they are able to take the child/children to live in another town, city, state or country. If you are in this situation and you can’t agree on the relocation, you may find yourself in Court. The Court will make the decision regarding relocation. It is vital that both parents facing a possible relocation of the children seek expert legal advice. For more information on International relocation of children please see our international family law page.

Joshua Williams

Recovery Order and location order applications

If or where a child has been wrongfully retained by a person, a Recovery Order can be sought for the ‘recovery’ or return of the child/children, often without notice to the other party.

Where there is uncertainty about where the child/children are living or located, a Location Order can be used to require a third party, for example, a government department such as Services Australia, to supply information as to a child’s whereabouts to assist in locating a child/children wrongfully retained by a person.

An application to the Court must be made to obtain a Recovery and/or Location Order. In deciding whether to make a Recovery Order, the court is obliged to consider whether it is in the ‘best interests’ of the child/children to do so.

If made, Recovery Orders are administered by the Australian Federal Police, and are enforced by them, or by local police.

Applications to the court for parenting matters

In the event that you cannot reach an agreement with your ex-partner about parenting arrangements, it may be necessary to apply to the Federal Circuit and Family Court of Australia to ask the Court to make a decision for you.

In the unfortunate event that you happen to fall into the very small percentage of the population that has to go to Court to obtain Orders, unless your matter falls into one of the exceptions, you must first make a genuine attempt to reach an agreement (i.e. by obtaining a Certificate from a Family Dispute Resolution Practitioner to show that an attempt has been made to resolve your dispute) with your ex-partner before filing an application to the Court.

To obtain advice about applications to the Court for Parenting Matters, what qualifies as an exception to obtaining a Certificate or how to obtain a Certificate from a Family Dispute Resolution Practitioner, please contact us.

Surrogacy, adoption, guardianship and alternative ‘Parenting Pathways’

Australia does not currently have Commonwealth adoption laws. Instead, each state has it’s own laws which can make the process seem complex. Surrogacy and alternative parenting pathways can also be a minefield. Our family lawyers have significant experience and can guide you through the options, even providing hope to families who may have previously struggled with traditional adoption. If you are considering adopting a child, caring for a child of a family member or surrogacy, please contact us for assistance.

Parenting questions and answers

If a Court has made an order for equal shared responsibility, the Court must then consider ordering "equal time" or "substantial and significant time". This pathway is:
  1. To consider if the child should live with each parent for equal time, provided this is reasonably practicable and in the child’s best interests. If this is not appropriate then
  2. To consider whether the child should spend substantial and significant time (days falling on weekends and holidays and days not falling on weekends and holidays) with the parent with whom the child is not living, provided this is reasonably practicable and in the child’s best interests. If this is not appropriate then
  3. To consider what time the child should spend with the parent with whom the child is not living would be in the child’s best interests.  Disputed parenting matters are difficult and quite often, the Court will order that evidence from experts from the Psychology or Social Science field be obtained (eg. a Family Report, a Psychiatric Assessment Report etc.)
Separating with children does not mean the end of holidays. As Mum or Dad may not be coming along, it often means that holidays may require a little more planning and consideration. Not all holidays are international - so we have separated the discussion of holidays into interstate and international travel.
Interstate Travel

If you are currently in or have been involved in family law parenting proceedings, the likelihood is that you will have parenting orders (or a parenting plan) which deal with the issue of travel specifically.

If you do not have parenting orders, have a parenting plan or there is no restriction on interstate travel in your parenting orders or plan, there will be nothing legally preventing you from travelling within Australia – provided, of course, that you are otherwise complying with the parenting orders or the agreement between yourself and the other parent.

The absence of a parenting order or parenting plan may complicate the issue of travel if the other parent does not consent to the holiday and/or it results in the child/ren missing out on spending time with the other parent.

If an agreement cannot be reached in those circumstances, an application to the Court may be necessary so that an order can be obtained to appropriately allow for travel.

You will need to allow sufficient time for your application to be prepared and heard prior to the intended holiday, so we recommend that you attempt to resolve this issue well ahead of time.

International Travel

International travel is a common issue in family law proceedings. If one parent is not willing to consent to the travel and the parents are unable to reach an agreement – an application to the Court may be necessary.

As a general rule, it is never a good idea to take child/ren overseas without the consent of the other parent. This will be viewed very poorly by the Court (particularly if proceedings are ongoing), and can result in punitive measures including incarceration.

If a parenting order has been made or parenting orders under the Family Law Act are pending, it is an offence to take or send a child to a place outside of Australia without the consent in writing of the other parent or an order of the Court. This offence is punishable by imprisonment for up to three (3) years.

The appropriate course of action for parents who intend to take their children for overseas holidays is to make an application to the court to determine the matter if an agreement cannot be reached.

The Court will then consider the various applicable factors such as the background parenting circumstances and relationship between the parents, the length of the proposed trip, the age of the child/ren, the proposed destination and the risk that the child/ren may not be returned.

If a parent is successful in obtaining an order and they are permitted to take the child/ren overseas, the other parent will often ask for and/or the Court will often issue orders providing that the travelling parent provide the non-travelling parent with a travel itinerary (including proof of return airfare ticketing) and a means of communication with the child/ren while travelling.

Orders are often framed so that parental consent will not be unreasonably withheld for future holidays and that the parties obtain and keep up to date the child/ren’s passports, so as to avoid any future litigation in relation to the matter and to ensure there is an agreed process in place for future travel.

More specific Orders can also be obtained with respect to where a parent is allowed to take a child. For example, restrictions may be placed on parents travelling with children to non-Hague Convention countries or where there is a ‘DFAT warning’ (Department of Foreign Affairs and Trade) in place.

If you are considering an overseas holiday with your child/ren and cannot reach an agreement with your ex-partner, we recommend that you act early and decisively.

A family report is a written report prepared by a social worker or psychologist, for the purpose of making observations and recommendations about the future care and living arrangements that are in the best interests of children in parenting disputes.

A family report writer can either be appointed by the Court or jointly elected by the parties in the parenting dispute.

After a family report writer has been appointed or elected, they will conduct interviews with each parent and will observe each parent interact with the child/children. If age appropriate, the family report writer may also interview the child/children separately, but only if they are comfortable in doing so.  Other significant family members, such as step-parents, grandparents or other people who do or will live with the child, may also be asked to the interview.

It is the family report writer’s job to gather information about your background, your involvement in the children’s arrangements pre and post-separation, the issues in dispute, your relationship with the children and the arrangements you believe are in the best interests of the children moving forward.

If your matter is in Court, the family report writer will also read the Affidavit (and other) material you and your ex-partner have filed. Importantly, what you say to the family report writer is NOT confidential and may appear in the family report, if the writer considers it relevant to include. It is not uncommon for one or both of the parties to disagree with the observations or recommendations made by the family report writer.

While the family report is usually the only independent and professional piece of evidence the Court is able to rely upon, the Court is not bound by the recommendations of the family report.

Although the family report writer has had the benefit of meeting with and observing the parties and the children, his/her report is an opinion only and it is ultimately up to the Court to decide how much weight is to be given to the report.

In the event that you disagree with the recommendations or observations of the family report writer and your matter proceeds to a trial, the family report writer is able to be cross-examined on the report he/she has given. The importance of a family report and your preparation for same should not be taken lightly.

Unless your child’s safety is at risk and/or you can establish that there is a ‘reasonable excuse’ for contravening a Court Order, you are required to and should always comply with parenting Orders. If you are unable to establish that you had a ‘reasonable excuse’ as to why you have not complied with a parenting Order, you will most likely be met with an application by the other parent. If your matter was previously in Court, you will find yourself before the same Judge who decided your matter initially and/or made the original Orders. Unless you can establish a ‘reasonable excuse’ for contravening the Order, your previous Judge, who made Orders that were in the best interests of your child, is unlikely to be sympathetic to you for breaching the Order and you may be ordered to pay the other parent’s costs of bringing the Contravention Application.
What is a ‘reasonable excuse’?
Unfortunately, the term ‘reasonable excuse’ is not exclusively defined in the Family Law Act 1975. However, the Family Law Act 1975 does provide that a person is taken to have had a ‘reasonable excuse’ for contravening a parenting order if:
  1. The person who contravened the Order did so because he/she did not understand the obligations imposed by the Order at the time the contravention occurred; OR
  2. There are ‘reasonable grounds’ to believe that contravening the Order was ‘necessary’ to ‘protect the health or safety of a person’ (including the respondent or the child) AND the period of contravention was not longer than was necessary to protect the health or safety of that person.
Obligations and consequences of failing to comply with a parenting order Attached to the back of each parenting order made by the Court is a fact sheet that details your obligations and the consequences of not complying with parenting orders. The relevant parts regarding compliance are as follows:
Your legal obligations
You must do everything a parenting order says. This includes taking all reasonable steps to follow the order.
Penalties for failing to comply with a parenting order
A court can only penalise someone for failing to comply with a parenting order if another person files a contravention application alleging the person did not comply with the order. After considering all the facts of the case and applying the law, a court may decide:
  1. The alleged contravention was not established;
  2. The contravention was established but there was a reasonable excuse;
  3. There was a less serious contravention without reasonable excuse; or
  4. There was a more serious contravention without reasonable excuse.
If a Court finds that you have failed to comply with a parenting order without reasonable excuse, it may impose a penalty. Depending on the situation and the type of contravention, a Court may:
  1. Order you to attend a post separation parenting program;
  2. Compensate for time lost with a child as a result of the contravention;
  3. Require you to enter into a bond;
  4. Order that you pay all or some of the legal costs of the other parties;
  5. Order that you pay compensation for reasonable expenses lost as a result of the contravention;
  6. Require you to participate in community service;
  7. Order you pay a fine; or
  8. Order that you be imprisoned.
A Court may also make a further order that discharges, varies or suspends the order or renews some or all of an earlier order, or adjourn the case to allow a person to apply for a further order that alters the parenting order.
The first step is to determine how you want to manage your child support. Child Support Agency The Child Support Agency has designed a formula that takes into account each parents circumstances to determine what amount of child support is to be paid. This formula takes into account:
  • Each parent’s income and the combined income amount;
  • How much time each parents cares for each child; and
  • Each child’s age.
The costs of a child is worked out based on research conducted by the Child Support Agency into what parents spend on children in Australia. Once an application for a child support assessment has been made, the Child Support Agency will contact the applicant and discuss options for collection. The formula does not include an allowance for private school fees or health insurance premiums.
Private Child Support Agreement
The Child Support (Assessment) Act also provides for two types of agreements that set or alter the amount of child support to be paid to take things into account such as:
  • payment of private school fees; • payment of uniforms, books and extra-curricular-activities; • payment of private health insurance; • additional costs due to the ‘special needs’ of a child.
The two types of Private Child Support Agreements include:
  • Limited Child Support Agreements; and,
  • Binding Child Support Agreements.
Limited Child Support Agreements
Limited agreements are intended to give parents some flexibility to make child support arrangements without committing themselves to a long-term agreement. Limited agreements do not require independent legal advice before the agreement is signed. A formula assessment, by the Child Support Agency, does need to be in place before the agreement is lodged, and the amount payable in the terms of a limited child support agreement must be for at least the amount of the existing child support formula assessment If both parents wish to end a limited child support agreement, they can do so by making a new agreement or by simply agreeing in writing to end the existing agreement. The agreement can also be terminated unilaterally by either parent if the notional assessment changes by more than 15% in circumstances not contemplated by the agreement, or at anytime after three years. If both parents are happy with the agreement in these situations, it will remain in place.
Binding Child Support Agreements
Binding agreements are intended to provide a high level of certainty and finality about child support arrangements for parents. Legal advice is therefore required for both parties to ensure that parents understand the consequences of making such an agreement, and to provide some protection against coercive or misleading behaviour. A Binding Child Support Agreement differs from a Limited Child Support Agreement in that a Binding Child Support Agreement requires that:
  • each parent must have independent legal advice to enter the agreement;
  • each parent’s lawyer must provide a statement confirming that they provided the parent with independent legal advice;
  • the statement of independent legal advice must be annexed to the agreement
The benefits of a Binding Child Support Agreement, when compared to a Limited Child Support Agreement include:
  • Each party to the Binding Child Support Agreement must have received independent legal advice before entering the agreement and must also receive legal advice before terminating the agreement, therefore making it more difficult for one party to unilaterally end the Agreement;
  • An administrative assessment does not need to be in place before the Binding Child Support Agreement will be accepted and enforced by the Child Support Agency, except where the binding agreement provides for the crediting of a lump sum or non-periodic payments. An administrative assessment must be in place before a limited child support agreement can be accepted by CSA;
  • When compared to a Binding Child Support Agreement, Limited Agreements are significantly easier to end. Only in very limited circumstances would the Court set aside a Binding Child Support Agreement;
  • The terms of a Binding Child Support Agreement can be for more or less than the relevant formula assessment for child support, whereas the annual rate of child support payable under a Limited Agreement must be at least the assessed annual rate of child support.
  • A binding child support agreement can also be made to be binding on a payer’s estate.
Note: If you enter into a Binding Child Support Agreement your child support provisions will be final.
Depending on the urgency of your matter, there are a few steps you can take if your ex-partner is refusing to let you see the children. In the event that you do not have Family Court Orders in place (and your matter is not urgent), you will be required to attend Family Dispute Resolution first and make a genuine attempt to resolve the matter before you can make an application to the court to commence proceedings. Once you have attended or made an attempt to attend Family Dispute Resolution, the Family Dispute Resolution Practitioner will issue you with what is known as a Section 60I Certificate.  This Certificate gives you a right to make an application to the Court for parenting Orders in the event that an agreement is unable to be reached. However, there are exceptions to the requirement of attending Family Dispute Resolution and/or obtaining a Family Dispute Resolution Certificate, which are the following:
  • Where a person is applying for consent orders;
  • Where the matter is urgent;
  • If the court has reasonable grounds to believe that:
    • Family violence or child abuse has occurred, or;
    • There is a risk of violence or child abuse of there was to be a delay;
  • Where it is not practical for the person to participate in FDR (for example, because of physical remoteness); or
  • Where a person has contravened and shown a serious disregard for a court order made in the last 12 months.
In the event that there are currently Family Court Orders in place and your ex-partner is refusing to allow you to spend time with the children pursuant to the Orders, it is recommended that you obtain legal advice as to whether it would be suitable to attempt to resolve the matter by attending Family Dispute Resolution or whether it would be appropriate to bring a Contravention Application. A Contravention Application is an application that alleges a breach of an Order. Typically, a Contravention Application is used to seek an order from the Court imposing a punishment or consequence upon the person breaching the order. However, the range of remedies available from the Court include:
  • Making orders for ‘make up time’;
  • Varying an existing order;
  • Putting a person on notice that if they continue not to comply with the order they will be punished; or
  • PFines;
  • And for very serious contraventions, imprisonment.
However, before bringing a Contravention Application, parties should seek legal advice and consider the costs involved, as well as the risk that the whole of the Orders may be re-opened and varied, not just the order that is alleged to have been contravened. What can I do if my ex-partner has moved with the children without my consent? If your ex-partner has moved with the children without your consent, and the circumstances are not urgent, parties should make an attempt to try and resolve the matter by way of negotiation, or if appropriate, Family Dispute Resolution prior to making an application to the court. In the event that there are urgent circumstances or you are unable to persuade your ex-partner to return with the children, you may be able to make an application for an urgent recovery order without the need to attempt Family Dispute Resolution (or obtain a Family Dispute Resolution Certificate) first.
Recovery Order
A Recovery Order is an Order made under the Family Law Act that will require a child to be returned to a:
  • Parent of the child;
  • A person who has a parenting order that states the child lives with, spends time with or communicates with that person; or
  • A person who has parental responsibility for that child.
Any of the persons mentioned above, including a person who is concerned with the care, welfare and development of the child, may apply for a Recovery Order. If there are no parenting orders in place, you will need to first file an initiating application prior to seeking a recovery order. If the Court makes an order authorising the recovery of a child or directing another person to find the child, a copy of the Order must be given to this person. In most circumstances, this will be the Australian Federal Police (AFP). If you or the AFP are unable to locate your child, you may apply to the Court seeking a Location Order, a Commonwealth Information order, or a Publication order.
Location Order, Commonwealth Information order and Publication Order
A Location Order will be made if a person subject to a parenting order breaches the order, and is unable to be found. A Location Order compels a third party, most times the Australian Federal Police or Centrelink, to provide information relating to the person’s last known address. A Commonwealth Information Order requires a commonwealth department, such as Centrelink, to give information pertaining to the child’s whereabouts as it is contained in the records of the department. A Publication order allows the media to publish details and photographs of the child and the person they are believed to be with. This is usually a last resort.
Airport Watch List
If you are concerned that your ex-partner is likely to take the children overseas without your consent, whether indefinitely or otherwise, you may also be able to make an application for the children’s names to be placed on the Airport Watch List. The Airport Watch List alerts the Australian Police to the movement of children subject to a parenting order that limits or prevents the child from travelling overseas. To place a child on this list, you need to:
  • complete a Family Law Watch List Request Form;
  • have a Court order in place that limits or prevents the child from travelling overseas; OR
  • have filed an application with the Court for a Court order that prevents the child to travel overseas; OR
  • have filed an appeal with the Court against an order of the Court relating to the child that limits or prevents the child’s overseas travel.
An Independent Children’s Lawyer (ICL) represents your child’s best interests and prioritises their interests as the focus of any decisions. An ICL may be necessary, and the Court may appoint an ICL in circumstances where the following circumstances exist:
  • There are allegations of abuse or neglect in relation to the children;
  • There is a high level of conflict and dispute between the parents;
  • There are allegations made as to the views of the children and the children are of a mature ages to express their views;
  • There are allegations of family violence;
  • Serious mental health issues exist in relation to one or both of the parents; or
  • There are difficult and complex issues involved in the matter.
The main role of an ICL is to consider the views of the child but also provide their own independent evidence and perspective regarding what arrangements are in the child’s best interests. Not every case will have an ICL appointed.

If relocating with the child will not affect the current living arrangements of the children or the Orders that are already in place (including schooling arrangements and the time spent with each person subject to the parenting order), it is usually not necessary to obtain the consent of the other party first.

However, if you are planning to relocate somewhere with a child that will have a more significant effect on the child’s ability to spend time with the other parent or continue at their current school (for example), then it is imperative that you first obtain the consent of your ex-partner prior to relocating, whether Orders are in place or not.

If a parent intends to, or unilaterally relocates with a child, that is, without the knowledge or consent of the other parent, that parent can and will often make an application to the Court to stop the other parent from the relocation or to enforce a parenting order, if an order is in place.

In a lot (but not all) cases, the Court will Order the return of the child on an interim basis – that is, until a final hearing can be had to determine what is in a child’s best interests.

However, whether on an interim or final basis, and whether a party wishes to move with the children or not, the Court will always be required to give consideration to what is in the child’s ‘best interests’ (see our Frequently Asked Question: How does the Court decide who the children will live with?) in determining what Order to make.

Since 2006 there has been a “presumption” included in the Family Law Act 1975 that it is in the children's best interests for both parents to have equal shared parental responsibility. The presumption can be rebutted by evidence that it is not in the best interest of children for there to be equal shared parental responsibility.  The presumption does not apply where there is abuse or family violence.

“Parental Responsibility” was previously referred to as “Guardianship” and involves all the duties, powers, responsibilities and authority parents have with respect to children. It involves matters such as:

  1. Education
  2. Religious and cultural upbringing
  3. Health
  4. A child’s name
  5. Relocation of a child’s residence.

There are no hard and fast rules as to which parent a child shall live with (formerly known as 'custody') and which parent a child will spend time with (formerly known as 'access'). The Court's paramount consideration in determining which parent the child should live with, and how much time the child shall spend with the other parent, is what is in the 'best interests of the child'. The Family Law Act 1975 sets out the factors that are to be taken into account in determining best interests. These factors are divided into two categories: primary and secondary considerations.
The primary considerations are:
  1. the benefit to the child of having a meaningful relationship with both of the child's parents; and
  2. the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
The additional considerations are:
  1. the views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
  2. the nature of the relationship of the child with each of the child's parents and other persons (including any grandparent or other relative of the child);
  3. the extent to which each of the child's parents has: a. participated in making decisions about major long-term issues in relation to the child b. spent time with the child; and c. communicated with the child;
  4. the extent to which each of the child's parents has fulfilled their obligations to maintain the child;
  5. the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from either of his or her parents or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
  6. the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
  7. the capacity of each of the child's parents to provide for the needs of the child, including emotional and intellectual needs;
  8. the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
  9. if the child is an Aboriginal child or a Torres Strait Islander child, then the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture)
  10. the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
  11. any family violence involving the child or a member of the child's family;
  12. if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order;
  13. whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child; and
  14. any other fact or circumstance that the court thinks is relevant.
In applying the above considerations, the court is to give greater weight to the primary considerations.
Justin Hine

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