Children and Parenting Arrangements

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In ideal circumstances, the best arrangements for children and parenting, where relationships break down, are often arrangements agreed to by the parties themselves. Importantly, when considering and formalising parenting arrangements, the ‘best interests of the child’ is paramount.

We work with our clients, and often other experts where needed, to help our clients negotiate arrangements for children that meet the needs of children.

The Family Law Act requires parents, in most cases, to resolve parenting disputes by mediation before any court proceedings can be started. Exceptions to this general rule apply in urgent circumstances, or where there is risk to a child.

We have an agreement in regards to the parenting arrangements. How do we make that agreement binding?

If you and your former partner have agreed about parenting arrangements then that agreement can be made as binding Court Orders or alternatively, written up as a Parenting Plan.

What is a Parenting Plan?

children. It must be signed and dated by both parties.

A Parenting Plan is normally reached by parties working out the parenting arrangements either by directly negotiating with each other, or with the help of a family dispute resolution practitioner.

It is not legally enforceable and is different from a Parenting Order, which is made by a court. If you do go to court, the court will take into account any previous parenting plan.

What do we do if we cannot agree about parenting?

Under the Family Law Act, if you disagree with your spouse/former partner about arrangements for children, except in cases where there is:

  • a genuine risk to a child (such as abuse or family violence); or
  • urgency (such as a threatened abduction or other serious matter),

then you must first try to resolve your parenting dispute with a mediator who is specially trained to help parties resolve family law disputes. These mediators are called Family Dispute Resolution (‘FDR’) Practitioners. FDR Practitioners can be lawyers with special mediation training, social workers, counsellors or psychologists who have significant mediation training and experience.

There are also some circumstances where mediation is not possible. If an FDR Practitioner does not believe that mediation is suitable, then the practitioner will not proceed with the mediation. An example of where FDR may not be suitable is where there are issues or concerns around family violence.

What happens if we go to mediation but still cannot agree on parenting arrangements?

If you have already attended Family Dispute Resolution (FDR) with an FDR Practitioner and you have not been able to agree about arrangements for your children or the mediator does not consider your matter suitable for FDR, then the FDR Practitioner will issue you with a certificate made under section 60I of the Family Law Act.

A section 60I certificate is required to be obtained before either party may apply to the court for a parenting order.  A section 60I certificate demonstrates to the court that the parties have made a genuine effort to resolve their dispute by attending at mediation or FDR. A copy of the 60I certificate would then be attached to any parenting application made to the Family Law Courts.

Courts are not permitted to hear a parenting case unless parties have first tried FDR, or one of the exceptions referred to above applies.

How do courts decide who the children will live with and spend time with?

When deciding who the children will live with and spend time with, the court applies the provisions set out in the Family Law Act. One of the main things the court needs to decide is what arrangements are in the childrens’ best interests.

‘Childrens’ best interests’ is not a generic term. It means the court must look closely at each individual child's circumstances before deciding what is best for that child or children.

The primary matters the court takes into account when making this decision are the benefit to the children of having a meaningful relationship between the children and both parents, and the need to protect the children from harm or family violence.

There are several additional considerations that the court will also take into account when considering parenting orders.

What is an Independent Childrens’ Lawyer?

An Independent Childrens’ Lawyer (‘ICL’) is sometimes appointed by a court to represent childrens’ interests in court proceedings.

The purpose of an ICL is to act as an independent representative to assist the court in determining what arrangements are best for the children. The ICL will usually meet with children and they will have an opportunity to express, to the ICL, any views they may have about current or future arrangements.

However, the ICL's main function is to assist the court by marshalling evidence, liaising with the parties and any experts appointed to provide reports, and to form a genuinely independent view, based on the factors the court must consider about what arrangements are in the best interests of the children.

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