Common questions in parenting disputes

Common questions in parenting disputes
July 8, 2021 /

Our experienced family lawyer answers some common questions from parents seeking guidance in negotiating arrangements for their children. Parents who may have recently separated often feel they don’t know where to start with sorting out arrangements for the children, some are in the middle of those discussions and need some guidance navigating legal terms and this difficult area of law.

What rights are there in family law?  What are my rights as a parent?

Children are often said to have rights under the Family Law Act, such as the right to a meaningful relationship with both parents. This comes from the law stating that the Court should decide a dispute about the children’s arrangements according to what is in the best interest of the child.  When deciding what is in the best interest of a child, the law says that 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.

There is no provision for “parent’s rights” in parenting or child custody disputes in the law. The law is child focused.

What is child custody?

In today’s legal terms, you are seeking an Order that your child lives with you.

The law in Australia has moved on from using the words child “custody” and “access”, we now use the terms “live with” and “spend time with” when making Orders about the children’s time with their parents. While child custody is no longer the language used in courts in Australia, people still refer to parenting disputes as child custody disputes as they are familiar with the older language.

Often parents who seek custody of their child are seeking an Order that the child live with them for the majority of the time. Access to a child is expressed as a child spending time with the other parent.

What is parental responsibility?

Each parent naturally has parental responsibility unless a Court Order is made about parental responsibility.

This is different from custody or where the child lives with one parent. Parental responsibility means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children. This isn’t about the day-to-day decisions for a child but about making major, long term decisions for a child. Some examples are decisions about their education, religion and religious upbringing and major health decisions.

It is not automatic that where the children live with one parent, that parent with “custody” has sole decision-making power in those matters. The Court presumes that it is in the best interest of the child for the parents to have equal shared parental responsibility, unless there are reasonable grounds to believe that a parent has engaged in abuse of a child or family violence.  The Court can Order that one parent has sole parental responsibility. 

Our family law clients receive professional, compassionate and supportive service

Our family law clients receive professional, compassionate and supportive service
June 24, 2021 /

We recently received this lovely testimonial from a family law client of our Associate and dedicated family lawyer, Sarah Galvin.

“Just wanted to say a huge thank you to Sarah and the team at Robbins Watson for helping me with my separation recently.

Sarah was exceptional in all her dealings with the separation and put my mind at ease throughout the entire process. It was a challenging time however Sarah had it completely under control and achieved a great result allowing me to move forward with confidence. Sarah was very professional, compassionate and supportive the whole way through.

Thanks again Sarah for all that you do.”

Mediation for children’s matters: What do I need to think about before mediation?

Mediation for children’s matters: What do I need to think about before mediation?
June 8, 2021 /

Parents attending mediation for the first time over the arrangements for their children often don’t know what to expect from the process. We encourage parents to consider what arrangements they think will work for their children beforehand so that you can make the most of your mediation session. We have set out below some key topics you will probably discuss at mediation and the things parents can think about to ensure that they get the most out of the mediation.

  1. How are you going to make important decisions?

    One of the first things that a parenting agreement starts with is how the major, long term decisions relating to the children should be made by the parents, the exercise of ‘parental responsibility’. This is decisions about schooling, religion and major medical decisions, not day to day issues. The parents can agree that decisions can be made solely by one parent, or both parents could have equal shared parental responsibility (where both parents have equal say in these decisions).

  2. Living arrangements – details, details, details…

    One the best ways to avoid confusion and conflict in future is to be very clear about where the children are living and what time they are spending with each parent. This includes making sure that you discuss what days changeovers will happen but also what times and where they occur, and a contingency plan. So for example, if one parent is to collect the children from school, then what if that day is a public holiday or a pupil free day? Another is example is school holidays, if the parents agree that the children will spend half of the school holidays with each parent, then when is half? Does the school holiday start on the last day of school, or the day after? Which half will be spent with which parent? Having a detailed plan means parents know what the expectations are and there is no confusion later on about how the arrangements will work.

  3. What about special occasions?

    Children’s arrangements can include provisions about how the children spend special occasions. You can ensure the children share special events with both parents, such as the children’s birthdays, Easter, Christmas, Eid or any other religious or social occasions which are important to your family. Parents can also agree that the children spend particular occasions with one parent (such as Mothers and Father’s Day or the parent’s birthdays). It’s completely up to the parents as to how that will best work in their circumstances.

  4. Are these arrangements practical and workable?

    Take a step back and consider how the proposal will work in practice. How long does it take to journey to and from the changeover locations? Will you hit traffic at peak hour? Are the children moving between the parents houses with school items, sporting equipment or a musical instrument, how will that work? Does each parent need to have a set of school uniforms?

  5. Do the arrangements need to change as the children grow up?

    What might be right for a child right now might not be right for them in future. You can plan for the arrangements to change in future. Generally speaking, as children get older they are more likely to cope with longer periods away from each parent. Parents can agree to lengthen the time the children are with each parent in future in order to reduce the frequency of changeovers and movement between households. Some parents they decide that the arrangements will change when the children reach a certain age, or when they move from primary school to high school. It’s about what will work best for your child, both now and in the future.

  6. Have we provided for communication about the children?

    Parenting arrangements can stipulate how and when the parents will keep each other informed about their circumstances and important matters relating to the children, as well as communication with schools and medical practitioners.

  7. What can’t we put in a plan for the children?

    It’s not appropriate to become involved in, or place restrictions on, the day to day running of the other parent’s household. It can be helpful to discuss consistency of routine for the children in both households, but ultimately, unless there’s a safety issue, each parent is able to conduct their household and make day to day decisions without interference from the other parent.

  8. Have you thought about interstate travel, passports and overseas travel?

    The children travelling interstate is a matter which some parents feel it is important to be informed about. A parenting plan or Order can stipulate when the parents are to inform each other about interstate holiday plans.

    Even if neither parent has any plans to travel overseas, it is worthwhile considering what travel arrangements would be possible in future. If parents enter into a consent Order, the arrangements will remain in place until the children turn 18 years of age and either parent might wish to travel overseas with the children in future. Parents can reach agreement about who obtains and pays for the children’s passports, where they are kept, under what circumstances each parent can take the children out of the country and to what countries they can travel. Parents may wish to limit travel to countries which are signatories to the Hague Convention on the Civil Aspects of international Child Abduction, for example.

  9. Do we want the arrangements to be written up as a Parenting Plan or Court Order?

    Parents can record their agreement about the children’s arrangements as a Parenting Plan or a Consent Order.

    A Parenting Plan is an agreement between the parents. It cannot be enforced in court, it is not legally binding and either parent can withdraw from the agreement at any time.

    A Consent Order is an Order of the Court. It sets out the agreement reached by the parents, it can be sought with the consent of both parents (thus the name) and granted by the Court.

    This will be a binding and enforceable Court Order. It will be a final Order, which means the parenting arrangements cannot be litigated unless exceptional circumstances arise.

If you have any questions or wish to discuss any parenting issues further with an experienced family lawyer, book in for a free 30min consultation on our website of telephone 5576 9999. 

Thank you from the Australian Cancer Research Foundation

Thank you from the Australian Cancer Research Foundation
May 26, 2021 /

Today we received this lovely gift in appreciation of the hard work of our wills and estates lawyers Allison Kelly and Nathan Rutherford put into our fundraising day.

Robbins Watson Solicitors completes a Qld first on PEXA

Robbins Watson Solicitors completes a Qld first on PEXA
May 20, 2021 /

This morning we effected a part-tenancy Transfer pursuant to Consent Orders on PEXA, being the first of its kind. The process was simple and efficient. We are so excited to now be able to offer a wider scope of electronic transactions to our clients. Thank you to PEXA for allowing Robbins Watson Solicitors this opportunity to show that we are leaders in our field.

We Love a Happy Client

We love a happy client!

We love a happy client!
March 12, 2021 /
We Love a Happy Client

We love a happy client! Our solicitor Vy Tran received this gorgeous gift in appreciation for a job well done!

Meet the Judiciary

Meet the Judiciary

Meet the Judiciary
March 1, 2021 /
Meet the Judiciary

Our lawyers enjoyed attending a fascinating event  “Meet the Judiciary” breakfast organised by the Gold Coast District Law Association. The Judges who kindly attended shared fascinating insights and practical tips for professional life. Featuring our lawyers Sarah Galvin, Emma Post, Isabella Phillips, and Allison Kelly.

Meet the Judiciary


Explainer: Merger of the family law courts and what this means for you

Explainer: Merger of the family law courts and what this means for you
February 22, 2021 /

The government’s bill to merge the Family Court with the Federal Circuit Court of Australia has now passed, so what does this mean for people needing to go to court for a family law matter?

There has been a lot of talk about “abolishing the family court” and “merging” of the family law Courts. It is now going to become a reality with the passing through the Senate on 17th February 2021 of the Federal Circuit and Family Court of Australia Bill 2019 and Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2019.

What’s going to happen?

Currently, most family law matters already start in the Federal Circuit Court. The Federal Circuit Court deals with family law matters as well as other areas of federal law too. If a matter is complex, then it would be started or transferred up to the Family Court, where appeals of family law decisions are heard.

The new Court will bring both Courts under one name.

Soon, there will be a new Court called “The Federal Circuit and Family Court of Australia”(or “FCFC”). The current Family Court will become “Division 1” of this new Court and the Federal Circuit Court will be “Division 2” of this Court.  

How is this different?  

In practice, it won’t change your experience of Court much. Under the new “FCFC” –

  • All matters will start in the Federal Circuit Court, or “Division 2” of the new Court. This level will still be able to deal with family law and child support as well as other federal law areas so this remains the same for most litigants;
  • There are likely to be some changes to procedures, such as a new set of Court forms; and
  • the Judge you appear before will probably be the same.

These are just a few examples. The legislation contains other procedural changes.

Need Help?

If you need assistance with a family law matter, please don’t hesitate to contact our specialist family law team to book a free 30 minute consultation on 5576 9999.

When the High Court uses old French

When the High Court uses old French
December 4, 2020 /

Often legal phrases have a latin root, but this one stems from old French! And we still need to know about it…

The High Court has just dealt with a case of property settlement where the parties and their assets span more than one jurisdiction. This can, and does, give rise to arguments about which country’s courts has, could or should determine property settlement.

What are we talking about? Estoppel. Don’t run away just yet…

For non-lawyers, think of it as you are stopped from raising something in court which has already been done or dealt with. For family lawyers, the High Court has given an education in claim or cause of action estoppel and Anshun estoppel (called Henderson extension by the Full Court).

In this case, the High Court endorsed the original decision that Orders made in the United Arab Emirates did not stop the wife bringing a claim for property settlement in Australia.

Given the prevalence of international relationships and overseas assets, disputes about the Court where property settlement should take place are going to keep coming up.

If this applies to you or you need help with property settlement, please don’t hesitate to contact our experienced family law team on 5576 9999.

For the very keen, the case is Clayton v Bant [2020] HCA 44

Should you wish to download a copy of this article please click HERE

Supporting our local business community

Supporting our local business community

Supporting our local business community
November 26, 2020 /
Supporting our local business community

Last night a pleasant evening was spent by our lawyers  at Currumbin Wildlife Sanctuary at a fundraising event for the Sanctuary’s Wildlife Hospital. This is a fantastic local not for profit organisation and our Allison KellySarah Galvin and Nathan Rutherford as well as Isabella Phillips enjoyed the event.