Parenting

In ideal circumstances, the best arrangements for children where relationships break down, are often arrangements that parties agree to.

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

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.

FAQs

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

'Parenting Plan' is a written agreement that sets out parenting arrangements for 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. A Parenting Plan 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.

'Consent Orders' are legally binding Orders that are approved and made by the Court. This can be done by a Judge or a Registrar (a Court Official) making the Orders after Court proceedings have been commenced or, if the parties agree, after filing an Application for Consent Orders. Consent Orders can be enforced by the Court if one or both parties breach the Orders.

Consent Orders can deal with all types of family issues including parenting, financial settlements and maintenance. If you have already reached an agreement but want the reassurance and protection of having binding orders in place, E&A Lawyers can help you apply for Consent Orders. If Court proceedings have already been started, then they can be settled at any time by having Consent Orders made if the parties agree

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 a FDR Practitioner does not believe that mediation is suitable, then the Practitioner will not proceed with the mediation

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 copy of the section 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 applies. You will need advice from a family lawyer and the next steps to take if you believe your circumstances fall within one of the allowable exceptions.

E&A Lawyers can also provide FDR services. However if we provide you with FDR, we cannot advise or represent you in your family law matter. We also cannot provide you with FDR if we have already given you or your former spouse/partner legal advice.

When deciding who the children will live with and spend time with, the Court applies provisions set out in the Family Law Act. One of the main things the Court needs to decide is what arrangements are in the children's best interests. This is not a generic  term. It means the Court must look closely at each individual child's circumstances then decide 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 meaningful relationship between the children and both parents, and the need to protect the children from harm or family violence.

There are several other additional considerations that the Court will also be taken into account. Some of these include the nature of the relationship between the children and each parent, the likely effect of any changes in the children's circumstances, and the practical difficulty and expense of a child spending time with a parent. In some circumstances, the views expressed by children will also be taken into account. There are certain legal presumptions about parenting, and parental decision-making that the Courts must apply. Unless some of the allowable exceptions apply, decision-making by parents about their children is usually shared equally.

At present, the Family Law Act links parental decision-making with further presumptions about the time children spend with each parent. This has led to some confusion about "equal time" arrangements.

Before you attend a mediation about a parenting issue, it is prudent to obtain some legal advice about what arrangements would be appropriate in your circumstances. Each family law situation, and what is best for each child, is unique.

An Independent Children’s Lawyer (“ICL”) is sometimes appointed by a Court to represent children's  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 the current or any 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 o form a genuinely independent view, based on the factors the Court must consider, about what arrangements are in the children's best interests.