Parenting Arrangements & Child Custody Lawyers Melbourne
When a relationship involving children breaks down, whether you were married, in a de facto or same-sex relationship, the foremost concern is establishing arrangements for their ongoing care and well-being. At Kelly & McHale Family Lawyers, we understand the profound importance of these decisions. We offer compassionate, child-focused advice and robust representation to help you secure parenting arrangements that are in your children’s best interests.
What are Parenting Arrangements?
Parenting arrangements cover all aspects of your children’s lives post-separation. This includes:
- Who the children will live with: This determines the child’s primary home.
- The time children will spend with each parent: This includes weekdays, weekends, holidays, and special occasions.
- Parental Responsibility: Who will make decisions about major long-term issues affecting the children (e.g., education, significant health matters, religious upbringing).
- Communication: How parents will communicate with each other about the children, and how children will communicate with the parent they are not currently with.
- Specific Issues: Addressing matters such as schooling, medical treatments, cultural upbringing, and travel arrangements.
The Guiding Principle: The Best Interests of the Child
In Australia, all decisions about parenting arrangements are guided by one paramount principle: what is in the best interests of the child. The Family Law Act 1975 sets out the factors the Court (and parents when making decisions) must consider. These include:what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i) the child; and
(ii) each person who has care of the child (whether or not a person has parental responsibility for the child);
any views expressed by the child;
the developmental, psychological, emotional and cultural needs of the child;
the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so; and
anything else that is relevant to the particular circumstances of the child.
The Court must also consider:
any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and
any family violence order that applies or has applied to the child or a member of the child’s family
There are no “hard and fast rules” dictating specific amounts of time. Each family is unique, and arrangements must be tailored to the individual circumstances of the children involved.
Reaching Agreement: The Preferred Pathway
With appropriate advice and a focus on co-operation, many parents successfully reach their own agreements about parenting arrangements. This is generally the best outcome for children, as it minimises conflict and allows parents to retain control over decision-making.
- Family Dispute Resolution (FDR) / Mediation: Before you can apply to a court for parenting orders, you are generally required to attend Family Dispute Resolution (mediation) with an accredited practitioner. The aim of FDR is to help parents discuss issues, consider options, and try to reach an agreement. If you attend FDR and cannot agree, the practitioner will issue a certificate (known as a Section 60I certificate), which you will need to file with your court application. There are some exceptions to this requirement, such as cases involving urgency or family violence.
- Formalising Your Agreement:
- Parenting Plans: A parenting plan is a written agreement, signed and dated by both parents, setting out parenting arrangements. They are flexible and can be changed by agreement. However, parenting plans are not legally enforceable by a Court in the same way as court orders. They can be considered by a Court in subsequent proceedings.
- Consent Orders: If you reach an agreement, you can apply to the Court to have it made into Consent Orders. These orders have the same legal force as if a Judge had made them after a court hearing. They provide greater certainty and enforceability.
Parental Responsibility
It is common for the Court to consider it to be in the best interests of a child for their parents to have shared parental responsibility or joint decision making. This means both parents have a role in making decisions about major long-term issues concerning their children. Sometimes this will not apply and one parent may have sole parental responsibility or sole decision making. It is crucial to understand that shared parental responsibility is not the same as equal time. It refers to decision-making, not the schedule of how much time a child spends with each parent.When Court Proceedings are Necessary
If parents are unable to agree on arrangements, even after attempting mediation, one or both parents may need to apply to the Federal Circuit and Family Court of Australia for parenting orders. The Court will then make decisions based on the children’s best interests after considering all the evidence.
How Kelly & McHale Family Lawyers Can Help
This is a delicate and often emotionally charged area of law. Kelly & McHale Family Lawyers have extensive experience in assisting parents to:
Understand their legal rights and responsibilities.
Focus on the best interests of their children.
Negotiate and mediate appropriate parenting arrangements.
Draft clear and effective Parenting Plans or applications for Consent Orders.
Provide representation in Family Dispute Resolution.
Advise on complex issues such as relocation, allegations of risk, or specific needs of children.
Represent parents in court proceedings, should litigation become necessary, with skill and sensitivity.
While we always encourage parents to resolve their issues amicably, we are fully prepared to advocate strongly for you and your children if court intervention is required.
Frequently Asked Questions (FAQs) about Parenting Arrangements
Here are some common questions parents have when navigating separation.
What’s the difference between “shared parental responsibility” and “equal time”?
Shared parental responsibility means both parents have an equal say in major long-term decisions for the child (e.g., schooling, significant medical issues). It does not automatically mean the child will spend equal time with each parent. The amount of time a child spends with each parent is determined separately, based on what is in the child’s best interests.
To help us advise you: What kind of decisions do you foresee needing to make jointly for your children? What are your current living and work situations?
At what age can my child decide who they want to live with?
There is no specific age in Australia where a child can definitively decide where they live. The Court will consider a child’s expressed views, taking into account their age, maturity, and understanding of the situation. The older and more mature the child, the more weight their views are likely to be given, but it is only one of many factors the Court considers.
To help us advise you: What are the ages of your children? Have they expressed any preferences regarding their living arrangements?
What if the other parent is preventing me from seeing my children?
If there are no court orders in place, you should first try to resolve this through discussion or mediation. If there are court orders being breached, or if you cannot resolve the issue, you may need to seek legal advice about enforcing the orders or applying for new orders. The Court views withholding contact without good reason very seriously.
To help us advise you: Are there any current parenting orders or agreements? What reasons, if any, has the other parent given for preventing contact?
Can I move to another city or state with my children (relocation)?
If you wish to relocate with your children and it will significantly impact the time the children spend with the other parent, you will generally need the other parent’s consent or a court order permitting the relocation. The Court will decide based on what is in the children’s best interests, considering many factors, including the reasons for the move and the impact on the children’s relationship with both parents.
To help us advise you: Are you considering relocating? If so, where to, and what are your reasons? How would this impact the children’s time with the other parent?
What is a Parenting Plan, and is it legally binding?
A Parenting Plan is a written agreement signed by both parents that outlines parenting arrangements. While it shows an intention to agree, it is not legally enforceable like a court order. However, if you later go to Court, the Court must consider the terms of the most recent Parenting Plan when making parenting orders. For a legally enforceable agreement, you would seek Consent Orders from the Court.
To help us advise you: Have you and the other parent already discussed or written down any agreements about the children?
What if I am concerned about family violence or substance abuse by the other parent?
The safety of children is paramount. If you have concerns about family violence, child abuse, or substance abuse by the other parent that poses a risk to your children, you must raise these with your lawyer and, if necessary, with the Court. The Court will take such allegations very seriously and may make orders to protect the children, such as supervised time or no time with that parent, depending on the evidence.
To help us advise you: Do you have specific concerns about your children’s safety with the other parent? Are there any existing Intervention Orders?
How often will parenting arrangements be reviewed or changed?
Parenting arrangements can be changed by agreement between the parents at any time if circumstances change. If there are court orders in place, they can only be changed by a new court order. To get a new order, you generally need to show there has been a significant change in circumstances since the last orders were made, and that the new proposed orders are in the children’s best interests.
To help us advise you: Are there current parenting orders in place? Have there been any significant changes in your family’s circumstances since they were made?