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Following separation, you will need to determine the care arrangements for your child or children including:

  • Where your child will live;
  • Who your child will spend time and communicate with;
  • What type of education and school your child will attend;
  • What religious upbringing your child will have;
  • What sporting and extra-curricular activities your child will attend;
  • Arrangements for school holidays, birthdays and special occasions;
  • Changeover arrangements.

Arrangements For The Children

In the absence of family violence, it is presumed that both parents will have equal shared parental responsibility for their child or children. This means that both parents have an equal role in making decisions about major long-term issues affecting the child such as where a child goes to school, major health issues or religious upbringing.

If the presumption of equal shared parental responsibility applies, the next step is to decide how much time each parent spends with the child.

The first consideration is whether equal time would be in the child’s best interests. In determining this, the following factors are considered:

  • Ages of the children;
  • Whether the parents live in close proximity;
  • Whether the parents have a good co-parenting relationship.

If equal time is not in the best interests of the child or reasonably practicable, the next consideration is for the child to live primarily with one parent and spend substantial and significant time with the other parent, which usually involves alternate weekends and one mid-week overnight stay.

Our lawyers can provide you with personal and practical advice on what parenting arrangement might be best for your child or children following separation including where they live, with whom they live with and how much time they spend with the other parent.

How Do We Formalise Our Agreed Parenting Arrangements?

If you and your former partner agree on future parenting arrangements, you can:

  1. Enter into a Parenting Plan;
  2. Obtain Consent Orders approved by a court.

A parenting plan is a written agreement that sets out parenting arrangements for children and it is worked out and agreed jointly. Unlike parenting orders, a parenting plan is not binding and enforceable and there are no consequences for breaching the parenting plan.

If you are seeking legally enforceable arrangements, you can make an application for consent orders which are approved by the court. If a parent fails to comply with an order, then an Application for Contravention may be filed alleging a breach of an order. If the breach of an order is serious, an Application for Contempt may be filed.

Our lawyers can provide you with specialist advice about the effect of any proposed consent orders. We can also assist you with preparing and filing an application for consent orders without you going to court.

What Happens If We Cannot Reach An Agreement On Parenting Arrangements?

If you and your former partner are unable to reach an agreement, you may apply to the court for parenting orders.

However, prior to commencing court proceedings you must participate in family dispute resolution. This involves going to a Family Relationships Centre or an Accredited Family Dispute Resolution Practitioner and making a genuine effort to resolve your issues.

If you attend family dispute resolution but cannot resolve your issues, or one of you fails to attend, or the mediator assesses your matter as not appropriate for mediation, you will be issued a Section 60I Certificate. This Certificate allows you to file an application at court. In certain circumstances the court may grant you an exemption from the requirement to file a certificate if the court is satisfied the application is sufficiently urgent or if a child has been abused or there is a risk of family violence.

What Does A Court Consider When Making Parenting Orders?

The best interests of the child is the paramount consideration for a court when deciding whether to make a parenting order in relation to a child.

In determining what is in the child’s best interests, the primary considerations are:

  • The benefit to the child of having a meaningful relationship with both parents; and
  • The need to protect the child from physical or psychological harm or from being subjected to, or exposed to abuse, neglect or family violence.

There are additional considerations in determining what is in the child’s best interests including:

  • Any views expressed by the child;
  • The nature of the relationship of the child with each of the child’s parents and any other persons, including any grandparent or other relative of the child;
  • The willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent;
  • The likely effect on the child of changed circumstances, including separation from a parent or person with whom the child has been living;
  • The practical difficulty and expense of a child spending time with and communicating with a parent;
  • The capacity of each of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs;
  • The maturity, sex, lifestyle and background of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
  • If the child is an Aboriginal child or Torres Strait Islander child:
  • – The child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture; and
    – The likely impact any proposed parenting order may have on that right.

  • The attitude of each parent to the child and to the responsibilities of parenthood;
  • Any family violence involving the child or a member of the child’s family;
  • Any family violence order that applies to the child or a member of the child’s family, if the order is a final order or the making of the order was contested by a person;
  • Whether it would be preferable to make the order that would be least likely to lead to further court proceedings in relation to the child; and
  • Any other fact or circumstance that the court thinks is relevant.

How Can We Help?

At East Coast Family Lawyers, we understand the delicate and emotional nature of parenting issues and decisions that need to be made following separation. We are highly experienced in children’s matters and can provide you with advice and guidance to ensure your rights are protected and you achieve the best outcome for you and your family.

For more information or to arrange an appointment please contact Kathy Matri or Kristina Kuskoff on 02 4322 0251.