Parenting and children
custody and care of the children
Disputes often arise between separated parents as to care arrangements for children.
If you are able to reach an agreement with your former partner or spouse as to parenting issues (including parental responsibility), it is best to formalise the agreement through Consent Orders filed at the Family Court of Australia. The benefit of obtaining parenting orders when the situation is still amicable is that should matters worsen, you can have the orders enforced by the court.
If there is no dispute
If you are fortunate enough to reach an agreement with your former partner or spouse in relation to who the children live with and how much time they spend with the other parent, it is advisable to formalise that agreement into consent orders. Binding court orders will protect you in the event that the other parent later becomes difficult, which can be common when a new partner is eventually introduced into the situation. Bainbridge Legal Parramatta can assist you by drafting the application for consent orders and filing in the Family Court of Australia.
What if we can't agree?
If you are unable to reach agreement our family lawyers can help you apply to the Family Court of Australia or Federal Circuit Court of Australia for parenting orders. Generally, it is a requirement for you and your ex partner to attend Family Dispute Resolution (‘FDR’) to try to mediate before commencing parenting proceedings. In exceptional circumstances, such as when the application needs to be heard urgently or where there has been domestic violence, mediation can be waived.
Best interests of the child - the paramount considerationThe Family Law Act provides that in determining parenting orders, the paramount consideration for the Court is to ensure that the orders made are in the ‘best interests of the child’. Therefore the Court does not look to achieve ‘fairness’ or ‘equality’ between the parents. In assessing what is in a child’s best interests, the Court must consider the benefit to the child of having a meaningful relationship with both parents balanced against the need to protect the child from harm. Additionally, the Court has regard to a number of other considerations including:
- • the relationship between the child with both parents and all other relationships of importance to the child to assess the effect of the proposed parenting orders on these relationships
- • the practical difficulty and expense of a child spending time and communicating with a parent
- • the views of the child (the weight applied to any views expressed by the child will depend on the strength of the views expressed, whether the views are reasonable, the child’s developmental stage)
- • the attitude to the child and the responsibilities of parenthood demonstrated by each parent
- • the capacity of each parent
- • the extent to which each child’s parents has fulfilled or failed to fulfil the parent’s obligations to maintain the child
• the extent to which each child’s parents has taken or failed to take the opportunity to participate in long term decision making, spend time with the child and communicate with the child