Children's Matters

Living Arrangements and Decision Making

The Family Law Act 1974 (“the Act”) governs the manner in which Courts determine parenting disputes. 

The Act provides that, where there are no Court Orders in place, the parties exercise parental responsibility either independently or jointly. If there is a dispute as to the allocation of parental responsibility the Court must (subject to the exceptions set out at Section 61DA (2) of the Act) apply the presumption that it is in best interest of the child for the parents to have equal shared parental responsibility.

If there is a dispute between parents as to the parenting of their children and the Court is called upon to make parenting orders then the child’s best interest remain the paramount consideration. The way in which the Court assesses the child’s best interest is determined by considerations that are set out in Section 60CC. The primary considerations are the benefit to the child of having a meaningful relationship and the need to protect the child from physical or psychological harm by being subjected to or exposed to abuse, neglect or family violence. The additional considerations are the wishes of the child, the nature of the child’s relationship with each parent, the willingness and ability of each parent to facilitate a close relationship with the other parent, the likely effect on the child of a change of circumstances and other considerations.  The intention of the legislation is that both parents should have a substantial involvement in their children’s lives subject to the need to protect children from harm, abuse and family violence and provided it that it is in their best interests and reasonably practicable.

If the Court finds in favour of the presumption of equal shared parental responsibilities then the Court must consider whether the child spending equal or substantial time with each parent is in the best interests of the child and whether it would be reasonably practicable. In the event that the Court decides that equal or substantial time is not appropriate then the Court will have regard to the objects of the Act.

Family Dispute Resolution

The Family Law Act encourages parties to resolve matters without resort to litigation. A Court will not be able to hear an Application for a parenting Order unless the parties file a certificate from a registered Family Dispute Resolution Provider.  A certificate is not required in certain circumstances, for example where:-

• There has been child abuse or there is a risk of child abuse by one of the parties;
• There has been family violence or there is a risk of family violence by one of the parties;
• The Application is made in circumstances of urgency;
• One or more of the parties is unable to participate effectively in Family Dispute Resolution (whether because of an incapacity, physical remoteness from dispute resolution services or for some other reason).

We can recommend Family Dispute Resolution Providers to you. Mediation is provided by numerous organisations including Relationships Australia and private Family Dispute Resolution Practitioners. A list of Family Dispute Resolution Practitioners is provided on the Family Relationships online website which is http://fdrregister.familyrelationships.gov.au/Search.aspx or on the Family Relationships advice line 1800 050 321.

If You Reach Agreement

Where parties are able to resolve matters without going to Court there are options available to formalize the agreement they have reached in relation to parenting matters. Parties can enter into a parenting plan or a Consent Order to document the terms of their agreement.

A parenting plan is a voluntary agreement which sets out parenting arrangements for the children. It must be in writing, dated and entered into free from any threat, duress or coercion. A parenting plan is not enforceable at law however, if any application is made to a Court for parenting Orders, Section 65DAB of the Act requires that the Court have regard to the most recent parenting plan when making a parenting Order if it is in the children’s best interests to do so.

A Consent Order is a voluntary agreement which sets out parenting arrangements for children in the approved Court forms.  Consent Orders are filed in the Court, and if the Court is satisfied that the orders are appropriate the Court will make the Orders sought.  Consent Orders are legally enforceable and can only be changed by written agreement or by a Court Order.  If you enter into a parenting plan after a Consent Order has been made then the parenting plan will take precedence over the earlier Consent Order but, as mentioned above, the parenting plan will not be legally enforceable. 

We can assist you with the drafting of both Consent Orders or parenting plans or alternatively you can visit the Court website to obtain information on how to draft both at www.familylawcourts.gov.au.

We recommend that you seek advice about the law as it applies to your circumstances and your obligations before you attend mediation.

Change of Name

A child’s surname is a matter of parental responsibility. If there is a dispute the Court can make an order regarding what name the child will be known by. The Court considers what is in the best interests of the child.

The child’s parents, or in certain circumstances one parent, can apply to change a child’s name in the Change of Name Register. If the child is over 12 years of age their consent is normally required. One parent may apply where they are the only parent shown on the birth certificate, the other parent is deceased or a Magistrates Court approves the change of name.

For more information follow the link to Births, Deaths and Marriages http://www.justice.qld.gov.au/justice-services/births-deaths-and-marriages

Contravention

Once the Court makes an Order a breach is a contravention of the Order. Sometimes this can be dealt with by arranging by agreement to remedy the breach, for example, to provide make up time or an apology. More serious or persistent breaches can be dealt with by making an application to the Court to have the person who breached the Order dealt with.

Location and Recovery

If you do not know your child’s whereabouts an application can be made for a location order. When deciding whether to make this order the Court considers the child’s best interests. The Court also has the power to make a recovery order which requires the return of the child.

Relocation

If the other parent wishes to relocate with your child and this will affect the time you spend with the child an application can be made to stop the other parent relocating with the child. Conversely, if you wish to relocate and the other parent opposes your relocation you may apply to the court for an order that you be able to relocate. The best interest of the child is the paramount consideration.

Grandparents and Grandchildren

The Family Law Act 1975 recognises that children have the right to spend time with and communicate with people who are significant to their care, welfare and development which includes grandparents and other relatives. 'Spending time with' and 'communicating with' includes face to face contact, telephone contact and correspondence such as letters and emails.

This website provides information only and is not a substitute for legal advice.