Children, Parenting & Family Law

Family Law can be quite complicated and particularly stressful for all parties involved. This is especially true when it comes to the most important matters to our hearts, our children.

1. What Does The Law Say?

The Family Law Act states that the rights and well being of a child of a marriage or a relationship is paramount. The Family Law Court of Australia and the Federal Magistrates Court all take the well being of children very seriously, by always putting the children first.

The Family Court of Australia is continuously developing programs to improve outcomes for disputed parties, especially for the children.

2. Are There Any Changes?

Yes. The Family Court of Australia as well as the Federal Circuit Court of Australia are always looking at how to make parenting matters easier on both the children and the families.

One welcome change implemented by the Family Court of Australia was the introduction of the Children’s Case Pilot program.  Basically, the Family Court is attempting to focus on achieving better outcomes for the children of the parents in a dispute.  The program encourages parties to spend less time in Court and encourages mediation.

Another major change was the introduction of the Family Law Amendment (Shared Responsibility) Act 2006.  The Act established 65 Family Relationship Centres for the benefit of families in dispute.  As a result of the relationship, the Court now requires families to attempt to resolve their conflict before their application is heard in the Court, in hope that Court proceedings will be avoided.

3. What Does The Court Consider?

The Family Law Act 1975 has changed the way the Courts deal with issues with respect to children.

The overwhelming consideration that the Court takes into account when dealing with parenting matters is the best interest of the children.

The Courts will initially begin with requiring both parents to have equal roles in deciding major issues with respect to their children.  However, the Family Law Act 1975 does not state how parents are to exercise this right. In the absence of an agreement between the parents, this can be overcome by creating a Parenting Plan or Parenting Order.

More importantly, the Court will consider initially whether it is appropriate that the children spend equal time with both parents.  Various factors come into play that the judges consider as their ultimate goal is what they believe is in the best interests of the child.

The law provides that parental responsibility ends once the child turns 18 years old or the child is adopted.

4. Equal Time – Shared Care?

The Family Law Act does not contain any clear guidelines as to when a shared care arrangement would be considered to be in the best interests of a child.

In considering shared care (as the Court is required to do in circumstances where parents have shared and equal parental responsibility) the Court is guided more by:-

  1. Past arrangements for the child’s care (that parents have put into place during their relationship with each other or since separation).
  1. General psychological material regarding the capacity of children to cope with shared care arrangements and the benefits and detriments to them of such arrangements.

A broad body of psychological and psychiatric literature exists which studies shared care arrangements and which both support and detract from such arrangements in particular circumstances.

Overall the Court has traditionally viewed shared care arrangements as requiring:-

  1. Both parents residing within close proximity of each other (and thus enabling children to continue in stable arrangements (such as schooling) without interruption).
  1. Children to be of an age where they are able to cope with such an arrangement (whereby they spend substantial periods of time with each parent and with no traditionally accepted “home base”).
  1. The ability of both parents to communicate effectively with each other and so as to enable children to pass between their households freely and with a minimum of disruption and conflict.
  1. As in most considerations regarding the workability of parenting arrangements the existence of good cooperative communication between parents and an absence of conflict is an important indicator of the likely ability of a shared care arrangement to work. However, it is open to a Court, even in the absence of demonstrated, cooperative parenting between parties, to make orders for shared care if satisfied that this would be in the best interests of a child.

5. Substantial and Significant Time

Whenever the presumption of shared and equal parental responsibility applies (which will be the case for the vast majority of parents) the Court is required to consider making orders to provide for children spending substantial and significant time with each parent (subject to this being seen as being in the best interests of a child and reasonable and practicable).

The Act gives some definition to what is meant by substantial and significant time and in these terms.  A child will be taken to spend substantial and significant time with a parent only if:-

  1. The time the child spends with the parent includes both:-
  • days that fall on weekends and holidays; and
  • days that do not fall on weekends or holidays (ie school days); and
  1. The time the child spends with the parent allows the parent to be involved in:-
  • the child’s daily routine; and
  • occasions and events that are of particular significance to the child; and
  1. The time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

Arrangements where one parent cares for a child during the school week and the other parent has every weekend is not what is intended by the family Law Act’s definition of substantial and significant time.  What is intended is the sharing of both time and responsibility.

The Family Law Act has a substantial emphasis upon making orders which enable both parents to have a meaningful relationship with their children.  This generally requires both a child spending time with a parent as well as a parent having significant involvement in making decisions for a child and significant access to information relating to the child (including school medical information).

6. Do The Children Have A Say?

This is a common question. Generally, children do not take part in Court proceedings. That is, they do not give evidence. However, if your case warrants it, a Children’s Lawyer can be appointed by the Court to interview your children and report to the Court about a host of matters. Where possible, they can also report to the Court the Children’s wishes and views.

7. What Does It All Mean?

The terminology used by the Court in making parenting orders generally falls in three categories being:-

  1. Orders as to where the children will live. The Court had previously made orders for residence or custody.  However, since 1 July 2006 the Court’s terminology has changed so that orders now made that children live with a parent.
  2. Orders regarding the time that a child will spend time with a parent. The Court had previously made orders regarding contact but, since 1 July 2006, the Court now makes orders that the children spend time with and/or communicate with a parent (including fact to fact time and communication by telephone, email and the like); and/or
  3. The Court can make orders regarding parental responsibility and decision making. There are however, a number of presumptions that apply with respect to parental responsibility and decision making and there are some exceptions which rebut parental responsibility and decision making.

8. Do We Have To Go To Court?

Not at all. Future parenting arrangements for children can be agreed between parents without the need for any Court intervention.

Parents are actively encouraged to reach agreement with each other regarding future parenting arrangements and so as to address all aspects of future parenting including:-

  1. What time children will spend with each parent; and
  1. Major long term decisions for children (such as the area in which they live, where they go to school, religious upbringing, medical treatment and the like).

It is also important, in addressing any issues relating to children’s arrangements, to be conscious of the inevitability of change in the future.  Ideally parents should consider how they will deal with and communicate with each other in the future to address changing circumstances and the changing needs of the children.

If an agreement can be reached, you can lodge agreed Consent Orders in Court. This finalises the matter and provides the parties with approved sealed orders from Court.

9. What Should I Take Into Account?

The Family Law Act 1975 encourages both parents to recognize the importance to their children of:-

  1. Having a meaningful relationship with each of their parents and with other people of significance in their lives (including step parents, extended family, siblings and step siblings); and
  1. The detrimental impact upon children of conflict between parents and children’s exposure to such conflict (whether present during arguments or exposed to parents negative attitudes towards each other). A significant body of psychological research exists to indicate that the most significant negative impact upon children, when their parents separate, arises from an inability of their parents to communicate with each other and to cooperatively parent.

10. What If We Can’t Agree?

Court processes do not generally enhance the ability of parents to cooperate with each other or to communicate.  Accordingly it is important to seriously reflect upon the need to preserve such communication as exists or, preferably, to build and develop communication between parents when both determining future parenting arrangements and in determining how issues in dispute will be addressed (ie whether through counselling and mediation or by application to the Court).

Whilst it is open to parents to reach agreement between themselves with respect to future parenting arrangements this is not always possible.  If the Court is called upon to deal with and determine any future parenting dispute then that decision will be made by the Court by regarding the best interests of the children (the subject of the dispute) as the paramount consideration.

11. Where Can I Get Support?

A number of community agencies offer excellent support and counselling services to parents who wish to jointly parent their children.  The agencies offering such services change from time to time although Penrith is well served by a number of agencies including:-

Family Relationships Centre

PH: 1800 050 321.


PH: 1800 864 846

Relationships Australia

PH:  1300 364 277

12. How Can Antwan Lawyers Help You?

We understand all the different types of disputes that can arise involving children.  We also understand the Court processes and the Law.  We can assist you in identifying the real issues of your dispute and actively attempt to settle the dispute to avoid unnecessary Court appearances and to reduce your costs. When matters require litigation for any reason, we will prepare your matter and draw your pleadings quickly and cost effectively. We understand that all matters should be succinctly noted so that the Judicial Officer hearing your matter understands the facts of your case before making any final decision.

We will provide clear advice and invite your questions so that you too can better understand your matter.

Ultimately, we understand that children are fragile.  Therefore, resolving disputes early is more beneficial for your children and consequently is better for you.

No matter how small or big or your differences are, at Antwan Lawyers, we will aim to provide you with sound advice that will ensure you reach a resolution that is a best possible fir for you and your children, whilst ensuring that you will continue to be a part of your child’s or children’s lives.

Call Antwan Lawyers today to discuss your Family Law Children Matters.