Children's Issues

Make an enquirySeparation and Children

Many separated couples are able to agree about future parenting arrangements for their children and do not require the assistance of lawyers, except with documenting their agreement. This is no doubt the best outcome for separated parents and their children and one that is encouraged by our Family Law team.

However, we know that it is not always possible to reach an agreement on child custody & children’s matters and we can assist in advising on how the Act will apply in such instances.

Below are some main points to consider.

 


Children and the law

The basic principles set out in the Family Law Act state that:

  • children have the right to be properly cared for and protected from harm, and
  • parents have the responsibility to care for their children.

When determining care arrangements, the Family Law Act states that the best interests of the child must be the primary consideration.

Children’s matters are not limited to disputes between parents and often include grandparents and other people closely concerned with the care of a child.

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Compulsory family dispute resolution

Except in limited circumstances you will be required to attend Family Dispute Resolution (FDR) and make a genuine attempt to resolve your parenting dispute prior to issuing a court application. The FDR process involves parties attending mediation to try to reach an agreement about the future arrangements for their children, child custody and any other matters in dispute.

If the matter does not resolve at this stage further negotiation through lawyers may be necessary and in some cases it will be necessary to make an application to the court.

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Will the child’s wishes be considered?

Each child is an individual and as they grow older the court will pay more attention to their personalities and opinions. For example, when deciding the child custody of where a child should live a court is more likely to consider the opinion of child in the mid- to late-teens.

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Relocating and overseas travel

If you want to move a long distance away from your partner sharing time with your children will be difficult. These cases often end up in court because it is difficult to decide who the children should live with when the direct consequence is restricted contact with the other parent.

You should not make any plans to relocate or travel overseas with your children without first obtaining written consent from your former partner or an child custody order from the court allowing you to do so. 

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Child Support

Parents have a responsibility to contribute to the child support costs of looking after their children.

The Child Support Agency (the CSA) is responsible for determining the amount and distribution of child support from one parent to another. The system and formulas for child support are complicated and based not only on what each parent earns but on how much time is spent with the children.

You can make a private agreement to replace the CSA amount, or to have it paid by providing specific support such as school fees or medical expenses, rather than cash.

We can assist with the preparation of CSA and provide general advice about your child support liabilities and entitlements. However, only the liable and entitled parties can deal directly with the Child Support Agency (unless you authorise us to do this on your behalf).

For further information about child support, you can visit the CSA website at www.csa.gov.au.

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Decisions parents will have to make

  • Where the children will live (one place or two?)
  • What religious celebrations and worship the children will take part in
  • What type of education and schools the children should attend
  • What attendance at sporting and extra-curricular activities is appropriate
  • How to fit in with the parents’ work arrangements
  • When and where the children should spend time with others (grandparents and other relatives)
  • What the handover arrangements will be
  • How to make arrangements for the children during holidays (school holidays and long weekends)
  • What arrangements should be in place for birthdays, special and family celebrations
  • Whether the children have any special needs, including medical requirements
  • What arrangements are reasonable for spending time with siblings and step siblings, and
  • How to bring flexibility into the terms of the agreement to provide for future events
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    Parenting Plan and Consent Orders

    You will probably have to compromise on arrangements for your children. Try to be flexible about the arrangements. It will be better for you and, more importantly, much better for your children if you are not fighting over every single issue.

    It helps to keep lines of communication open in the negotiation phase, as well as after you have resolved children’s issues. There are many decisions to be made about your children’s future- in almost all circumstances you will have to consult each other about them and reach agreement.

    If your children’s matters end up with lawyers or in the Family Courts, keep a sense of perspective on what is happening. It’s pointless spending $2,500 on legal bills for an argument over who should be washing and returning the children’s school clothes when you could buy a second set for one-tenth of the legal expense.

    How the court sees the children’s situation may be quite different to what you would expect or how you would see it.

    Once an agreement has been reached about arrangements for your children it is usually important for the agreement to be recorded appropriately.

    There are two options Parenting plan or consent order:

    Parenting Plan

    Parenting Plan A Parenting Plan is designed to encourage parents to reach an informal agreement between themselves about matters concerning their children. A Parenting Plan is an agreement that:

  • Is in writing; and
  • Is or was made between the [parents of a child; and
  • Is signed by the parents of a child; and
  • Is dated; and
  • Deals with a matter or matters such as who the child or children will live with, the time a child is to spend with another person or other persons, the allocation of parental responsibility for a child and the communication a child is to have with another person or other persons.

    The difficulty with a Parenting Plan is that it is an informal agreement between parties that IS NOT approved by a Court and IS NOT legally enforceable. That is, there is no penalty for breaching the agreement. Therefore, Parenting Plans may only be appropriate in very few cases and it is generally advisable to obtain a Consent Order.

    Consent Order

    A Consent Order is a written agreement that is approved by a Court. The relevant agreement is drafted in legal terms and signed by the parties.  The Application and the Orders are then sent to the Court for approval. Once approved, the Court will formally make the agreement Orders of the Court. This means that the agreement becomes a legally binding agreement and the Court can impose penalties if one or both of the parties refuses to follow the Orders.

    If agreement has been reached about all issues, obtaining Consent Orders is usually a straightforward process.
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    Cannot reach an agreement on arrangements for the children

    What happens if we cannot reach an agreement on the arrangements for the children?

  • If an agreement cannot made by agreement, then Court proceedings may be issued.
  • Before you can start proceedings, you must get a certificate indicating that you have undertaken ‘appropriate mediation’ or ‘primary dispute resolution’. This is compulsory in children’s matters. It involves going to a Family Relationships Centre or an Accredited Family Dispute Resolution Practitioner and attempting to resolve the issues. Hopefully this brings about agreement and you can then take a shortcut in the Court process by having the agreement made legally binding through Court Consent orders.
  • However, you can still get the certificate even if you have not resolved anything at the session. Also, if one party fails to attend the session, the certificate can still be issued stating this fact.
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    Changing my child's name

    What if I want to change my child’s name?

    A child’s name cannot usually be changed unless both parties agree to a change of name. If you wish to apply for a name change you must either seek the consent of the other party or apply to the Court. The primary consideration will be whether it is in the child’s best interests to have his or her name changed. Based on past Court decisions, factors to consider include;

  • The short and long-term effects of the change in the child’s surname;
  • The short term and long term advantages of the child’s name staying the same ;
  • Any embarrassment likely to be experienced by the child if his or her name is different from that of the parent with day to day care;
  • Any confusion of identity which may arise for the child if his or her name is changed or is not changed;
  • The effect which any change in surname may have on the relationship between the child and the parent whose name the child bore during the marriage; and
  • The effect of frequent or random changes of name.
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    Consent to the issuing of the childs passport

    What if the other parent will not consent to the issuing of a passport?

  • A passport for a child will not usually be issued without the consent and signature of all parties with parental responsibility and you should not make arrangements to travel overseas with a child in the absence of consent from the other party. Overseas travel should be planned well in advance and permission from the other party obtained as early as possible.
  • In cases where the other party is refusing to consent to signing a passport application then it will be necessary to make application to the Court seeking Orders that a passport be issued for the child without the other parent’s consent.
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