child custody and access in family law

How the Family Law Protects Children

Your Obligations Upon Separation

The Family Law Amendment Act 2024 came into effect on 6th May 2024.  The paramount objective of this amendment is the “best interests of the child.” Parents can no longer rely on the presumption that both parents have equal shared parental responsibility for the care and welfare of their children.

There is no automatic rule that children should live with either their mother or their father after separation.

If the parents cannot agree as to where the children are to live, then the Family Court has the power to make what are called “Parenting Orders”.

Does the Court Need to be Involved with Parenting Plan?

Parenting Orders can be agreed upon by a child’s parents, or can be orders made by the Court. Parenting Orders can deal with:-

  • The safety of the child
  • The person or persons with whom a child is to live 
  • The time a child is to spend with other people
  • The cultural needs of the child
  • Longer term plans for major decisions affecting the child
  • The communication a child is to have with another person, for example by telephone, email, video link up, or other electronic means
  • How disputes in relation to interpretation of a Parenting Order can be resolved
  • Any other issues relevant to the welfare of the children including for example medical treatment, choice of school, religious upbringing etc
  • The child’s own view and opinions

You and your partner do not have to have parenting orders made when you separate – you can agree about all matters concerning the children’s welfare and upbringing – you do not need a Court Order.  You can choose to enter into a Parenting arrangement which are informal agreements.  Should both parents agree to formalize this agreement so that it is legally enforceable, then they may apply to the court for a consent order. 

Parents may otherwise wish to consider formal agreements such as a parenting plan or parenting order.  Both of which are documented with the latter being a legally enforceable court order.

In situations where there is a conflict and disagreement between yourself and your partner, then you have the right to ask the Family Court to make parenting orders or your partner and yourself can agree upon Parenting Orders. 

How The Court Decides Parenting Orders

In the making of any Parenting Orders, including Orders which prescribe who a child lives with, who a child spends time with, communicates with, schools and extracurricular activities they undertake,  the Court must regard the best interests of the child as the paramount consideration. Amendment to section 60CC “Simplification of best interests factors” of the Family Law Amendment Act 2024 addresses 6 factors that require consideration when deciding upon the best interests of the child. These are,

  • the safety of the child and people who care for the child (including any history of family violence and family violence orders) 
  • the child’s views 
  • the developmental, psychological, emotional and cultural needs of the child 
  • the capacity of each person who will be responsible for the child to provide for the child’s developmental, psychological, emotional and cultural needs 
  • the benefit to the child of having a relationship with their parents, and other people who are significant to them (e.g. grandparents and siblings) 
  • anything else that is relevant to the particular circumstances of the child. 

With consideration to these factors, the Court will make a decision regarding determine the best interests of the child.

Relocation

As Australia becomes a more mobile society there are more incidences of one of the parents of the children wishing to relocate, either within Australia or to a foreign country. A Court cannot prevent a parent from relocating. However, it can prevent the parent who has the care of the children from taking the children with them.

Unless there are exceptional circumstances the parent who intends to relocate with the children should notify the other parent prior to doing so. If the other parent consents to the relocation, arrangements for contact with the children will need to be negotiated or determined by the Court. If negotiations are successful then it is preferable any agreement be properly documented.

If the other parent does not agree then it may be necessary for the parent wishing to relocate to make an Application to Court. The Court will then make a decision based upon the welfare or best interests of the children.

If there is a Court Order relating to parenting issues including who the child lives with and the time a child spends with other people, it is likely that the parent who the child lives with would not be permitted to relocate without the consent of the other parent, otherwise they may be in breach of the Order. The parent who the child lives with would need to make an Application to the Court to seek to vary the Order to allow them to relocate.

Even if there is no Court Order it would be prudent for the parent wishing to relocate with the children to seek the consent of the other parent before doing so and, if that parent does not give their consent, make an Application to the Court for an Order which would allow them to do so.

In determining relocation cases the Court has applied the following principles:

  • The welfare or best interests of the children is the paramount but not sole consideration;
  • A person wishing to relocate with the children is not required to demonstrate compelling reasons for the relocation;
  • The Court must evaluate each of the proposals advanced by the parties;
  • The evaluation of the intending proposals must weigh the evidence and submissions as to how each proposal would hold advantages and disadvantages for the children’s best interests;

A Court cannot determine the issues in a way which separates the issue of relocation from that of who the child will live with and the best interests of the children.

When considering the best interests of the children the Court will take into account such things as the right of the parent who the child lives with to move on with their life, form new relationships and have freedom of movement and the need to ensure the continuation of the relationship with the parent that the child spends time with and travel costs involved should the parent who the child lives with be permitted to relocate with the children.

The distance of the proposed relocation is a significant factor. The Court is very unlikely to restrain a parent who wishes to move from Brisbane to the Gold Coast. However, a parent who wishes to relocate the children to another country would have much more difficulty persuading the Court it is in the children’s best interests to do so, given the likely result is that the other parent would have much less frequent contact with the children. In cases such as these, the parent wishing to relocate would need to put forward good reasons to the Court why it would be in the children’s best interests to leave Australia to reside overseas and what arrangements they propose to be put in place to ensure the other parent has regular and meaningful contact with the children.
The parent seeking to relocate with the children or a parent who wishes to prevent the other parent from relocating should seek legal advice from us at an early stage.

Independent Children’s Lawyer

An Independent Children’s Lawyer is a Solicitor appointed by the Family Court to represent your children in the dispute before the Court.

The Independent Children’s Lawyer is always an experienced Family Law Practitioner who has practiced in the area of Family Law for many years and has had extensive experience with disputes concerning children before the Family Court.

The Court does not automatically appoint an Independent Children’s Lawyer in each and every dispute concerning children.

The Court will usually only appoint an Independent Children’s Lawyer upon Application by one of the parties and usually where one or more of the following circumstances exists.

  • There are allegations of abuse or neglect in relation to the children;
  • There is a high level of conflict and dispute between the parents;
  • There are allegations made as to the wishes of the children and the children are of a mature age to express their wishes;
  • There are allegations of family violence;
  • Serious mental health issues exist in relation to one or both of the parents or children; There are difficult and complex issues involved in the matter.

The Independent Children’s Lawyer is usually employed by the Legal Aid Office ( Victoria ) and is usually paid by the Legal Aid Office. However, if you and your partner are of a sound-financial position then you may be ordered to meet the costs for the Independent Children’s Lawyer.

The Independent Children’s Lawyer’s role in the Court proceedings is as follows:

  • To assist the Court at all times in the preparation and determination of your matter;
  • To act in the child’s best interests;
  • To primarily ensure that all proper evidence is put before the Court that is relevant to the determination of the matter;
  • To help facilitate negotiations and discussions between the respective parties and to help the parties reach a solution which is the best for the child;
  • In certain circumstances to talk to the child involved;

Usually the Independent Children’s Lawyer will not interview the children regularly at length.

If there are concerns about the children’s wishes or any other family dynamics, the Independent Children’s Lawyer may employ independent experts including Social Workers and Psychiatrists to provide reports and to give evidence to the Court.

If you have a Solicitor then your Solicitor will usually deal directly with the Independent Children’s Lawyer.