CHILDREN'S ISSUES

Children’s issues are the most important, and can often be the hardest, to resolve after a separation.

They should always be tailored to each child and family’s circumstances.

If you have recently separated and you’re not sure where to start sorting out arrangements for the children, we support parents with advice and answer questions about how the family law system works when it comes to parenting matters. We guide parents towards a child-centric resolution of issues including parental responsibility, where the children are to live, what time they spend with the other parent, practical day to day matters such as changeovers and communication regarding the children, and even issues such as the surname to be used by the child, academic and religious education, international travel and child support. We can discuss with parents what kind of arrangements would be appropriate for your children, and help you settle the arrangements for the children with the other parent to reduce any conflict about the arrangements in future.

If you are unable to negotiate with the other parent, we can represent and support you through negotiations and the mediation process to try and reach an agreement about the children’s matters, therefore avoiding the cost and stress of going to Court.

We can formalise a parenting agreement as a Parenting Plan or a Consent Order. We provide detailed, bespoke documents which will work for you now and in the future. We can make the process to obtaining a Consent Order from the Court smooth sailing for you. 

If there’s urgent circumstances or it hasn’t been possible to reach agreement with the other parent, we can assist you to bring Court proceedings and seek Orders about children’s matters.

If you have Orders which you have questions about or simply aren’t working any more, we can discuss your options with you.

Children's Issues

  • Where will the children live?
  • What arrangements need to be made for the other parent to spend time with the children?
  • Special Issues - religion schooling, supervision
  • Child Support (Maintenance)

Mediation and negotiations

  • How an agreement about children’s matters can be structured, make sure everything you need to cover is discussed
  • Negotiating with the other parent on your behalf
  • Support you to participate in mediation to negotiate an agreement in relation to the children’s matters
  • Formalising the Agreement

Urgent applications when:

  • One party has gone into hiding or absconded with a child;
  • One party has, or is trying to, remove the children from the country, or interstate
  • Children are being, or are at risk of being, abused
  • Hague convention applications

Consent Arrangements -

When everyone is in agreement, and you just want to record and make that agreement binding and final:

  • Parenting Plan
  • Consent Orders
  • Child Support Agreements

Existing Orders

  • Changes to existing orders
  • Enforcing orders when one party is not complying

Talk to an experienced family lawyer

Please don’t hesitate to book a free 30 minute initial consultation with one of our specialist family lawyers on this website or by calling us on 5576 9999.

Common questions in parenting matters

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.

Mediation and negotiation

We can help if you and the other parent are having difficulty sorting out the arrangements for the children. We can assist you with advice about all the things you need to agree upon, undertake negotiations with the other parent if things have become stuck or less than amicable, and we can help you to reach an arrangement which is workable, thorough and operates smoothly.

Parents are usually required to attend mediation in an attempt to reach an agreement about children’s matters without resorting to litigation. We can assist you with advice about what to expect at mediation, the topics you should think about and talk about, help reach solutions which will work for both parents.

If an agreement is reached, we can assist you to draw up your agreement as a Parenting Plan or Consent Order.

We can help if you and the other parent are having difficulty sorting out the arrangements for the children. We can assist you with advice about all the things you need to agree upon, undertake negotiations with the other parent if things have become stuck or less than amicable, and we can help you to reach an arrangement which is workable, thorough and operates smoothly.

Parents are usually required to attend mediation in an attempt to reach an agreement about children’s matters without resorting to litigation. We can assist you with advice about what to expect at mediation, the topics you should think about and talk about, help reach solutions which will work for both parents. 

Have you read our resources for parents?

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

If an agreement is reached, we can assist you to draw up your agreement as a Parenting Plan or Consent Order.

Parenting agreements – Parenting Plans and Consent Orders

An agreement about children’s matters can be set down as either a;

  • Parenting Plan
  • Consent Order

A Parenting Plan is an agreement between the parents. It is flexible and it is not legally binding, although a court can later consider the plan.

Parenting Plans are ideal for parents who are just starting to work out how to parent separately and aren’t sure what arrangements will work for their situation. If something isn’t working out for your children, then the plan can be changed to adapt to something that will work. You aren’t locked in by any formal Court Order. 

A Consent Order is an Order of the Court which has been consented to by both parents. The Order is much simpler to apply for than usual litigation. It is legally binding and there are sanctions from the Court for parents who do not comply with the Order. They are enforceable in Court.

We can help you decide which path you wish to proceed with and draw up the necessary documents for you to enter into a Parenting Plan or apply for a Consent Order.

Going to Court for Children’s Orders

If you need to apply to the Court for Orders about the children’s arrangements, our experienced family law team are able to present your case to the Court and help you navigate the Court system, including preparing court documents and representing you in court hearings and at mediations.

We can give you advice about Orders which will work for your children, covering;

  • parental responsibility and major decisions regarding the long term care, welfare and development of the children,
  • about “equal time” arrangements, or if the children live with one parent then what arrangements might work best for them spending time with the other parent;
  • progressive arrangements which move on as the children get older;
  • providing for indirect time and special occasions (such as birthdays and Christmas);
  • practical arrangements such as changeover arrangements;
  • communication about the children; and
  • travel and passports.

We listen to your goals.  We understand that you don’t won’t to be in Court any longer than you have to. We represent you in a professional manner, without resorting to tactics or dragging out litigation.

We guide you through the Court’s processes, such as child conferences and family reports, evidence gathering (such as issuing subpoena’s), engaging with Independent Children’s Lawyers and provide support and guidance through dispute resolution processes, such as mediation, and fully present your case at trial (if necessary).

We make sure the Court knows about your children and the things which are important to the best interest of your children.

If a resolution can be reached, we can expertly settle a thorough set of children’s Orders to bring an end to the proceedings and reduce the potential for conflict in future with the other parent.

LOCATION & RECOVERY OF CHILDREN

We have the experience to assist you with your children’s matters, including issues relating to location and recovery of children and relocating with children.

Where one parent relocates with children, without the other parent’s consent, that party can approach court seeking orders that the children be returned to the area they were removed from.

These Court orders usually require people or organisations (such as government departments like Centrelink) to give any information they have relating to the whereabouts of the parent or children and then further orders that a marshal of the Court or Federal Police officers, return the children to a specified location.

We can assist you in obtaining or opposing a relocation order, which is where one parent seeks to relocate, with the children, to another part of the state, country or world, to live.

Children’s matters are sensitive and emotional. It is an area of law that is constantly changing. Please contact us for advice specific to your circumstances.

Get the facts. Get Help. Call our team.

CONTACTS FOR THIS AREA OF LAW
Andrew Smyth

Andrew Smyth

Commercial Law Court Work & Litigation Family & De Facto Law Wills and Estates
With 30 years’ experience working in and managing business, Andrew Smyth is sought after by industry and commerce for his specialist knowledge in structuring, regulatory compliance…
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Sarah Galvin

Sarah Galvin

Court Work & Litigation Family & De Facto Law
From Brisbane to Kent County, England, back to sunny Queensland, Sarah has amassed over 20 years legal experience, locally and internationally. In that time Sarah found…
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Isabella Phillips

Isabella Phillips

Court Work & Litigation Family & De Facto Law Wills and Estates
Bell is a solicitor in our Succession & Litigation team and has taken to specialising in estate litigation. Bell graduated from Bond University with a double degree in…
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