Parenting

Best Interests of the Children

In 2006 the Family Law Act 1975 was amended and one of the important changes was to strengthen the importance of children's best interests.

The Act sets out clearly that children have a right to:

  • A meaningful relationship with both parents

  • Be protected from abuse, neglect and family violence

  • Receive adequate and proper parenting to help them achieve their full potential

  • Know and be cared for by both parents

  • Spend time with and communicate with both parents and any other significant people such as grandparents and other relatives

  • Receive the support and encouragement necessary to maintain a connection with their culture.

 

Ensuring all of these factors are met is in the children's best interests for healthy development and long-term well-being.

The Court makes decisions to ensure the child's rights are preserved and does not always take into account what the parents are asking for.

 

Child Custody

Many parents want to know what their 'rights' are over the parenting of their child and how they can retain custody.

It's very important to understand, right from the outset that it is the child who has the rights, and not the parent.

Child Custody is an outdated term in Australian Family Law although it is still commonly used and is the appropriate terminology in other jurisdictions.

There term refers to the arrangements for the parental care and residential and financial provision for the upbringing of the children of a relationship.

These days Arrangements for Children are made as parenting plans, parenting agreements or orders and talk about parental responsibility and who the child lives with and how much time the child spends with and communicates with each parent.

The Family Court will make orders for the time a child spends with each parent based on what is in the best interests of the child.

 

Parental Responsibility

Each parent is presumed to have equal shared parental responsibility for their children until they reach 18 years of age. This means whether they are still in a relationship together, are separated or remarried, both parents are responsible for the care and well-being of their child both long-term and on a day-to-day basis.

Equal shared parental responsibility means that parents must make major long-term decisions together.

A major long term decision includes things such as:

  • The child's education (both current and future)

  • The child's religious and cultural upbringing

  • Health and medical treatment

  • Any changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent

  • Changing a child's name.

The concept of equal shared parental responsibility, which relates to major decisions made for the child's well-being, is not the same as the child spending time with their parent and doesn't mean a parent has a 'right' to equal time.

 

Certificate of parental responsibility

The regulations of the Hague Convention provide a process in Australia for a person to get a court certificate stating that they have parental responsibility for a child. This may be useful, for example, if you are involved in a court proceeding relating to a child in a country, where fathers are not recognised if they were not married to the mother at the time of the birth of a child. To do this, you must apply directly to the registrar of the Family Court of Australia.

 

Child's Time with Each Parent

Time spent with each parent is not the same as Equal Shared Parental Responsibility.

In the vast majority of cases, it is in the best interests of the child to have a relationship by living with, spending time with and freely communicating with both parents.

Unless there are circumstances which place your child's safety in real danger, do not deliberately alienate the other parent to serve your own needs.

The Court will make a decision about the amount of time a child spends with each parent that it considers to be in the best interest of the child.

It could be:

  • shared care (equal time), or

  • substantial and significant time.

 

Shared Care (Equal Time)

There is an increasing trend, particularly with school aged children, towards a shared care arrangement where the child will spend equal time with each parent. This often takes the form or a full week about with each parent. Holidays are also shared 50/50 though the stays may be extended to allow for travelling.

Sometimes, shared care is not a practical and the Court must consider a child living with one parent and spending Substantial and Significant Time with the other parent.

 

Substantial and Significant Time

Substantial and significant time includes:

  • Allowing the parent to be involved in the child's daily routine

  • Spending time on the weekends and during holiday periods

  • Spending time on other days during the week both during the day at night or overnight stays

  • Communicating with the child at times when they are not spending time together

  • Allowing for participation in events that are significant to the child and the parent such as sporting events, cultural celebrations, school functions, family birthdays and Mother's or Father's day.

This arrangement is designed to allow both parents and their extended families to foster a nurturing and significant relationship with the child.

 

Parenting Plan

 

What is a parenting plan?

A parenting plan is a written agreement that sets out parenting arrangements for children. A parenting plan is an informal agreement and is not legally enforceable. 

The plan is formulated and agreed jointly by both parents and no one needs to go to court.

However, where there is a documented parenting plan in place and parenting orders are sought by one parent at a later date, the intentions and values outlined within the parenting plan may be considered as evidence of what the parents originally agreed on.

In order for parenting plans to be legally enforceable, you need to seek consent orders based on what has been agreed in the parenting plan.  Life is constantly changing.  As parents spend less time together, ideas on parenting may become less concrete or perhaps one parent will want to relocate.  You are advised to record your agreements so that they are legally binding.

If you have more than one child you may want to make a different plan for each child.

 

What should you include in a parenting plan?

You may wish to consider covering the following aspects of your child's life and parenting:

  • Who the child will live with

  • The time (when and how long) the child will spend with each parent

  • The time the child will spend with other people, such as grandparents , siblings, step-parents or other people that are important to the child

  • What activities each of you will do with your child (eg sports, homework, music)

  • How you will share parental responsibility and decision making about long-term issues such as the school your child will attend, healthcare and religion.)

  • How your child will keep in touch with the other parent and other people important to your child when they are with you

  • Who will attend the important events with your child such as school and sporting events

  • What arrangements need to be made for special occasions such as birthdays, religious or cultural events

  • What arrangements will be made for holiday periods and whether or not you may travel internationally with your child

  • How you expect to approach disciplinary issues

  • How will day-to-day expenses such as outings, school excursions, extra-curricular activities and pocket money be funded

  • Longer term financial arrangements for the child. This may include making contact with the Child Support Agency or Centrelink or a private Child Support Agreement

 

You should also give thought as to how things might change in the future and consider the following factors:

  • An agreed process that can be followed to change the plan or resolve any problems, if your children or either of the parents are not happy with the plan at a later date

  • How you will talk about and come to agreement on the important, long-term issues as your child matures such as travelling on their own, socialising and sleep-overs

  • What the procedure should be if one parent wants to relocate.

 

Including details about property and finance in your parenting plan is not legally enforceable.  

If it is age appropriate, you may wish to ask your child what their feelings are about some of the factors, such as where they will live and how they will spend time and communicate with each of you, before drawing up your parenting plan.

You may also benefit from seeking professional guidance from a Family Dispute Resolution practitioner, psychologist or counsellor.

Relationships Australia offers an excellent guide to writing a parenting plan.

 

 

Parenting Orders

If you are a parent, it is almost certain that one of your first priorities when considering separation will be to ensure that your children are adequately cared for and provided for.

If you are applying for a divorce, the court must be satisfied with the arrangements that you have made for your children before a divorce will be granted. This doesn't necessarily require orders or a binding agreement to be in place.

If you don't want to formalise the arrangements for the care of your children you can opt for either a verbal agreement or draw up a parenting plan.

It is recommended that you go through the exercise of preparing a parenting plan as this will assist you in future if either of you are unsure on what the initial values or intentions were in terms of raising your children.

If you can reach agreement with the other parent and wish to formalise arrangements, you may enter into a legally binding agreement or apply for a parenting orders.

Orders and agreements for the arrangements for children deal with such things as:

  • who the child will live with

  • how much time the child will spend with each parent and with other people, such as grandparents

  • the allocation of parental responsibility

  • how the child will communicate with a parent they do not live with, or other people

  • any other aspect of the care, welfare or development of the child.

 

If a parenting order or binding agreement is made, every person who is subject to the order or agreement must comply with it.

If one person doesn't abide by the undertakings, the other party can apply to have them brought before the court to be dealt with.

 

What is a Consent Order (Parenting)?

A consent order is a written agreement between parents (or guardians) that is approved by a court and covers the living arrangements for children as well as arrangements or the provision of finances to meet their needs.

Consent orders have the same legal effect as if they had been made by a judicial officer after a court hearing.

The consent order should also include details such as how agreements may be amended in future, either by way of agreeing a parenting plan or by applying to the court for a formal amendment.

The Court must be satisfied that the orders you ask for are in the best interest of the child before they will seal your application for consent orders.

 

Applying for Parenting Orders

If you and your ex-partner can’t reach agreement, then you can start court proceedings to ask the court to make a decision for you.

You do this by filing an Initiating Application. You must accompany the application with a Section 60I FDR Certificate.  Notice of the application is served on the other person and they are given the opportunity to also present their side of the story.

The magistrate may ask for input from expert witnesses such as psychologists and accredited family consultants.

Older children may be asked for their view on what they would prefer the living arrangements to be.  An independent children's lawyer may be present to represent the voice of the child.

In applying the principles of the law, the court will not be swayed by what the each parent prefers or what has gone before, but will make a ruling in terms of what is considered to be in the best interests of the child.

The Court listens to the circumstances of the case and makes Parenting Orders.

Unless ordered otherwise, you and your ex-partner can agree to change a parenting order in the future by entering into a parenting plan.

For more information on the step by step process of applying for consent orders click here.

For more information about the process for applying for parenting orders from the court, click here.

 

Changing Parenting Orders

There are two ways to change Final Parenting Orders which are either in the form of Consent orders or Parenting Orders made by the court:

  • agree to the changes with the other parent (or guardian) affected by the order and make an application to the Court for Consent Orders to reflect the changes, or

  • Prepare a Parenting Plan with the other parent outlining the changes and setting out the new agreements. Both parties must sign and date the Parenting Plan.

 

Family Dispute Resolution Certificate (Section 60i)

The Court requires an Initiating Application for Parenting Orders to be accompanied by a Section 60i Family Dispute Resolution Certificate before proceedings can be commenced.

This certificate can only be issued by and accredited Family Dispute Resolution practitioner and shows the Court that you have both participated appropriately in a facilitated mediation session to try to reach agreement on the parenting matters in dispute.

In urgent cases where the well-being of the child can be proven to be at risk or in circumstances where family violence or child abuse is involved, the parents may be excused from participating in mediation and obtaining the Section 60i certificate.

 

Child Support and Child Maintenance

Child Support is financial support paid by one parent to the other parent or carer of the child as a contribution towards the care and well-being of a child under the age of 18. Carers can include grandparents, other relatives, or friends, who have the child in their care.

Child Maintenance is financial support which is sometimes payable for your children after they turn 18.

There are two situations where child maintenance may be payable for 'adult children':

  • where the maintenance would be necessary to enable the child to complete their education (school, TAFE, or university)

  • where your child has a physical or mental disability which prevents them from supporting themselves.

Child Support and Child Maintenance are not taxable in the hands of the receiver.  

You can make a private agreement with the other parent about adult child maintenance, or you will need to seek an order from the Family Court.

Either of the child's parents, a grandparent, the child themselves or any other person concerned with the care, welfare or development of the child can apply to the Family Court for an order for adult child maintenance.  

The Child Support Scheme is managed by the Federal Government Department of Human Services but is commonly referred to by it's previous name, the  Child Support Agency (CSA).  

A formula is used to calculate the payments due based on:

  • both parents' income

  • if you are supporting other children

  • the amount of time you care for the children (your 'care levels')

  • the costs of raising children (including the number of children you have and their ages)

  • the basic living needs of parents

Most separated parents are covered by the Child Support Scheme and may approach the agency to assist them if the other parent is not willing to appropriately support their child.

From 1 July 2009, the child support scheme includes children from a previous same sex relationship.

To give an indication of the amount of Child Support applicable to your circumstances, you can use the following calculators:

Parents can reach an informal or private agreement outside the mandatory CSA scheme.  If you reach a private agreement, you are advised to make it legally binding by entering into a Child Support Agreement or filing Parenting Consent Orders which include the provision of child support.

 

Child Support Agreements

There are three types of private Child Support Agreements outside of the mandatory Child Support Scheme:

  • informal verbal or written agreement (not legally enforceable)

  • binding child support agreement

  • limited child support agreement.

The Court can find that a child support agreement is not legal if it was made using threats or pressure.

 

Binding Child Support Agreement

  • Allows you to make a financial agreement about your child support payments and how they are paid.

  • Can be made whether you already have a child support assessment or not.

  • Can be made for any amount that you and the other parent agree to.

  • May include payment of cash or non-cash items. Examples of non-cash items are school fees and health insurance.

  • Both parties must obtain independent legal advice before making or ending a binding agreement.

  • Legal advice provider must have been admitted by the Supreme Court of a state or territory of Australia and hold a current practising certificate.

  • Must be accompanied by a legal certificate signed by an accredited legal provider and a statement to confirm both parties to the agreement have received legal advice before signing the agreement.

 

Limited Child Support Agreement

  • A child support assessment must be made through the DHS (Child Support) before you can enter into a limited child support agreement. 

  • Must provide for child support that is equal to, or more than, the amount in the DHS (Child Support) notional assessment.

  • Limited agreements must be in writing and signed by both parties.

  • Child Support can either be paid privately between the parties or the DHS (Child Support) can collect the money.

  • Payee parent's or carer's Family Tax Benefit payments will be reduced based on the amount of the notional assessment.

  • Either party to the agreement may ask the Child Support Registrar to end the agreement after three years.

  • The parties may also agree to end the limited child support agreement earlier or in limited circumstances one party may apply to the Court to end the agreement.

  • There are other circumstances where a limited child support agreement might come to an end and you should take legal advice.

  • You do not need to have legal advice to enter into a limited child support agreement; however, it is recommended before signing any written agreements.

 

Changing a Child's Family Name

It is not illegal to start to use another name for your child without officially registering the change however, this may become problematic at a later date. 

You will not be able to make an application to the Registry for Births, Deaths and Marriages to change the family name of your child without the other parent's consent if:

  • the other parent also has 'Parental Responsibility' for the child, or

  • the other parent is listed on the child's Birth Certificate

unless:

  • you have a Court Order which says you have Sole Parental Responsibility for the child, or

  • the other parent is deceased

A parenting order made before 2006 may not indicate which parents have 'Parental Responsibility'. In these cases, the principles of the Family Law Act, 1975 apply which implies that both parents have shared parental responsibility and must obtain the consent of each other on long-term matters such as changing the child's surname.

 

Relocating Home

Generally, a Court cannot prevent a parent from relocating to live elsewhere but it does have the power to stop the parent from taking the child to live with them if it is against the wishes of the other parent and moving will significantly impact the time the child spends with both parents.

There are any number of legitimate and often unforeseen reasons why a parent may wish to relocate.  

For example:

  • employment

  • career enhancement

  • to be closer to family support

  • illness of a relative

  • to accompany a new partner

  • to go home to where they originate from

 

It is a advisable to make provision for this and include a clause in parenting orders preventing either parent from relocating without the consent of the other.

Including the need for consent to relocate in a parenting plan although an indication of intent would not be legally binding were one parent to relocate.

If you wish to relocate with your child, you can apply for permission to relocate with your child.

If you are aware that the other parent wishes to move, or has moved, you can apply to prevent them from taking your child or recover your child if they have already gone.

 

The Court will always consider what is in the best interests of the child and will take factors into account such as:

  • Any incidents of Family Violence or Child Abuse

  • The child's views if they are of an age and maturity level that the magistrate feels their views can be admitted

  • The likely effect of any chances to the child

  • The nature of the child with the parents and other persons, such as grandparents, in both locations

  • The willingness and ability of each parent to allow and encourage the child to communicate and spend time with the other parent where possible

  • maturity, gender, lifestyle and background history of the parents and the child.

 

Generally speaking, the further away a parent moves from the other parent, the more difficult it becomes to satisfy the Court that a move is in the best interests of the child.

 

Travelling Overseas with Children

Strictly speaking, if there are no Court Orders in place regarding children, you don't need the other parent's consent to travel overseas with your children. However, in the interests of effective co-parenting, you should discuss this with the child's other parent before making plans.

Where Court Orders are in place for children, the Family Law Act states that if you wish to travel overseas with your children, you must first obtain the other party's consent to do so.

In most circumstances, it is reasonable for one parent to want to travel internationally with their child, particularly if they have family or cultural ties to the destination country.

To avoid the issue of overseas travel becoming a dispute, when entering into Consent Orders or Parenting Agreements regarding your children's arrangements, include provisions for both parties to travel overseas with your children under various conditions.

If your child doesn't have a current passport, the non-travelling parent will need to sign the passport application.

Try to negotiate an agreement with the other parent about travelling with your children. Private discussions are often successful or you may engage the services of a mediator or legal representative.

If the non-travelling parent won't sign the passport application, you will need to file an application with the Family Court seeking that their signature is not required or an Order directing them to sign.

In reviewing your application, the Court's most important consideration is what is in your child's best interests.

Factors the Court will explore when deciding if your proposed travel should be allowed might be:

  • The length of your stay outside the jurisdiction the bona fide of the application

  • The effects on your children not being able to spend time with the parent in Australia

  • Any threats to the children's welfare in the proposed overseas environment where significant travel warnings by the Australian Government are in place

  • How satisfied the Court is that your promise to return to Australia will be honoured (you'll need to provide copies of return airline tickets and itinerary)

  • The existence (or otherwise) of continuing ties between the departing parent and Australia, such as owning property, business interests, or family/close friends in the country

  • the existence and strength of possible motives not to return, including the level of conflict between the parties concerned, particularly over child-related issues

  • the existence and strength of possible motives to remain in the country of proposed travel, again including such things as property ownership, business interests, and the existence of family and other personal ties.

 

If you are able to satisfy the Court your holiday plans are genuine, you'll probably be successful in getting an Order for the passport, as well as an Order allowing you to take your children overseas. In some circumstances, the Court may consider it appropriate to set conditions or require financial securities to make sure your children come back to Australia.

The form the security bond takes varies from case to case and could be a monetary bond paid to and held in trust by the non-travelling parent's solicitors or an agreed third party or it may be the travelling parent signing over an asset as security.

The following factors might be explored when setting a security bond:

  • In fixing the sum of money as security, whether the sum will realistically entice the person travelling with the children to return to Australia

  • Will the sum adequately provide the parent remaining in Australia to take action for the return of the children, if necessary

  • The degree of risk that the departing parent will not return to Australia

  • The financial circumstances of both parties

  • Any hardship to either party if the level of security is increased or decreased

  • Whether the country of travel is a signatory to the Hague Convention

  • The likelihood of deviation to a non-convention country

 

If you travel overseas and fail to return your children to Australia in accordance with the return airfare/itinerary, the security or bond may be released to the non-travelling parent so they can use the funds towards recovering the children into their care and bringing them back to Australia.

 

The Hague Convention

The Hague Convention is a multilateral treaty, which seeks to protect children from the harmful effects of international abduction by providing a procedure to bring about their prompt return.

If a parent (or guardian) takes a child unlawfully from their home in Australia to another country and keeps them their without the permission of either a Court or their other parent or guardian, it is considered to be International Child Abduction.

Australia is a signatory to the Hague Convention along with over 70 other countries.  It is easier to recover a child from a country which is a signatory to the Hague Convention and the convention allows the non-travelling parent to make an application in that country to have their child returned home.  The Commonwealth Attorney General's Department is the contact point if you wish to pursue a recovery under the Hague Convention.  You should seek legal advice urgently if your child has been abducted or kept overseas longer than agreed.

 

You will need to be able to prove that:

  • The child is under the age of 16 years

  • You currently have parental responsibility for the child

  • The child was ordinarily resident in Australia when they were removed

  • You were exercising your parental responsibility when the child was taken from Australia

  • You did not agree to the child being taken or kept away from Australia.

 

The other parent (or guardian) may be able to keep your child in the other country if they are able to prove:

  • You do not currently have parental responsibility for the child

  • You were not exercising your parental responsibility when the child was taken from Australia

  • More than a year has passed since you made the application to have the child returned and the child has now settled in their new country

  • The child is of an age and level of maturity which requires the Court to consider the views of the child and the child does not wish to return

  • Return of the child would result in denying the child their fundamental human rights

  • There is a significant risk of physical or psychological harm if the child was returned to where they used to live

 

Where a child lives in a different country to their parent, the Hague Convention also provides a mechanism for that parent to seek to have court orders made in the child's home country to all the parent to have access to the child. This may be through either the parent or the child travelling for visits , telephone calls, Skype, email and other forms of long-distance contact.

 

Countries which have signed the Hague Convention

  • Albania
  • Argentina
  • Armenia
  • Australia
  • Austria
  • Bahamas
  • Belarus
  • Belgium
  • Belize
  • Bosnia and Herzegovina
  • Brazil
  • Bulgaria
  • Burkina Faso
  • Canada
  • Chile
  • Colombia
  • Costa Rica
  • Croatia
  • Cyprus
  • Czech Republic
  • Denmark
  • Dominican Republic
  • Ecuador
  • El Salvador
  • Estonia
  • Fiji
  • Finland
  • France
  • Georgia
  • Germany
  • Greece
  • Guatemala
  • Honduras
  • Hong Kong (China)
  • Hungary
  • Iceland
  • Ireland
  • Israel
  • Italy
  • Latvia
  • Lithuania
  • Luxembourg
  • Macau (China)
  • Malta
  • Mauritius
  • Mexico
  • Moldova, Republic
  • Monaco
  • Montenegro
  • Netherlands
  • New Zealand
  • Nicaragua
  • Norway
  • Panama
  • Paraguay
  • Peru
  • Poland
  • Portugal
  • Romania
  • Saint Kitts and Nevis
  • San Marino
  • Serbia
  • Singapore 
  • Slovakia
  • Slovenia
  • South Africa
  • Spain
  • Sri Lanka
  • Sweden
  • Switzerland
  • Thailand
  • The Former Yugoslav Republic of Macedonia (FYROM)
  • Trinidad and Tobago
  • Turkey
  • Turkmenistan
  • Ukraine
  • United Kingdom
  • United States of America
  • Uruguay
  • Uzbekistan
  • Venezuela
  • Zimbabwe

 

The countries below have acceded to the Convention, but it is not yet in force between these countries and Australia:

  • Seychelles – acceded in May 2008
  • Morocco – acceded in March 2010
  • Russia – acceded in July 2011
  • Andorra – acceded in April 2011
  • Gabon – acceded in December 2010
  • Republic of Korea – acceded in December 2012

 

Grandparents' Rights

It is important to remember that it is the child who has rights and not the grandparents.  The child has a right to spend time on a regular basis and communicate with on a regular basis with both of their parents, their grandparents and any other people significant to their care, welfare and development.

As the child is seldom in a position to make the arrangements, often after a family split, a pattern will form where the grandparents only really see their grandchild when the child is spending time with the parent that is the son or daughter of the grandparents.

If agreement can be reached, these undertakings can be written into a parenting plan by the parents, or made legally enforceable with orders which name the grandparent or both grandparents.

If the grandparent cannot come to a suitable arrangement with the child's parent(s) to facilitate spending time with, or communicating by phone, letter, email, Skype etc with their grandchild, then they can apply to the Court for Orders.

It is mandatory for the grandparents to attempt Family Dispute Resolution with the parents before an application for orders will be accepted.

In hearing the application, the Court recognises that ordinarily, grandparents play a valuable role in the lives, development and general well being of their grandchildren but may also consider the following:

  • The nature of the existing relationship between the child and the grandparents

  • Any potential harm to the child's well-being

  • The capacity of the grandparent to provide for the needs of the child

  • The likely impact on the child of separation from the grandparent.

 

Child Abuse and Family Violence

Child abuse and family violence is a scourge in Australia at present and we all need to continue to raise awareness and give the problem our urgent attention.

 

 

Family Law around family violence is complex and requires the advice and intervention of experts trained to deal with your specific circumstances legally, as well as in managing the resultant ongoing trauma.

There have been changes recently to the Family Law Act. For proceedings commenced on or after 7 June 2012, Section 4(1) of the Family Law Act states as follows:

 

Abuse, in relation to a child, means:

  • An assault, including a sexual assault, of the child; or

  • A person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is an unequal power in the relationship between the child and the first person; or

  • Causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or

  • Serious neglect of the child.

 

Family violence means:

  • Violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful; and

  • A child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence (Section 4AB).

 

In a practical sense, as well as a direct assault on the child, child abuse effectively occurs when a child is present during verbal or physical assault of another person in their family and either sees or overhears the incident.

A child may suffer serious psychological and emotional harm if they are exposed to damage to the property in their home or they are left to comfort or assist a victim.

For more information about where you you can seek assistance in matters of family violence, visit our Useful Links Page.

 

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