PARENTING and CHILDREN
In family law parenting matters, the best interests of the children is the paramount concern of the court. This principle guides the Court in all decisions made about the care of children and so, too, should it guide parents.

When parents are in dispute about the care arrangements for their children it can take a heavy emotional toll on the whole family. It is important to provide as much stability and support to children as possible, ensuring that they do not get drawn into the dispute between their parents.

Parenting disputes might be about whom the children live with, how and when they spend time with the other parent or other family members, their schooling, religion or any other matters relating to the children.

As with a property settlement matters, there are different processes that can be engaged in to resolve parenting disputes and these are set out below.

Mediation/Family Dispute Resolution
When parties mediate they engage a neutral third party to assist them to reach a resolution to their dispute. Each party has an opportunity to express what issues are important to them. The mediator will assist you to explore these issues and workshop potential resolution options. This will involve negotiation of the issues in dispute, with that negotiation being facilitated by the mediator.

Agreements reached at mediation are not binding by themselves, but can be put into a binding form.

Except in certain circumstances, parties to a parenting dispute are required to attend Family Dispute Resolution instituting court proceedings.

Family Dispute Resolution is a type of mediation, with the difference that the mediator (or Family Dispute Resolution Practitioner) can issue a Section 60I certificate in parenting matters. For more information, see our section on
Family Dispute Resolution.

Litigation
Sometimes parties are unable to reach agreement to resolve their matter and they need to ask the court to make a determination. When the parties engage in court proceedings, this is called litigation.

Generally, litigation is seen as a ‘last resort’. It is preferable to try to reach a resolution without resorting to court proceedings, as they can be both financially and emotionally costly. Court proceedings can be particularly damaging to a parenting relationship.

During litigation, parties will generally continue to negotiate and often they will attend mediation, either by agreement or by court order.

Collaboration
Collaborative law is a relatively new concept. The collaborative process involves each party retaining a collaboratively trained lawyer (note: not all lawyers will offer collaborative services) and agreeing to resolve their dispute without going to court.

The parties and lawyers sign a four-way contract. In the event that the parties cannot resolve their dispute and need to go to court, they cannot continue to be represented by their collaborative lawyer. They must engage a new lawyer.

You can read more on our Collaborative Law page.

The Family Law Process (parenting matters)
When making Parenting Orders, the Court will have regard to the relevant sections of the Family Law Act 1975, which is the federal legislation that deals with family law matters. The overarching goal of the legislation with regard to parenting matters is that the best interests of the children are the paramount consideration.

There are a number of factors that the Court will consider when determining what is in a child’s best interests. These include, for example:

  • The importance of the child maintaining a meaningful relationship with both parents;

  • The need to protect the child from physical or psychological harm from being subjects to or exposed to abuse, neglect or family violence;

  • The views of the child and their maturity;

  • The relationship the child has with their parents and extended family;

  • The ability of the parents to care for the child;

  • The practical difficulty and expense of the child spending time with either parent.

This is not an exhaustive list of the matters set out in the legislation. Sometimes, the court may appoint a person called an Independent Children’s Lawyer to represent your child/ren. This lawyer is not aligned with either party and they will assist the Court to determine what is in the best interests of the children.

These same matters guide negotiations about parenting matters even when court proceedings have not been initiated and the parties are engaging in alternative dispute resolution processes.

Formalising parenting arrangements
As with property settlement matters, there are different ways you can formalise care arrangements, each with varying levels of Court involvement. If you and your former partner can agree on the care arrangements of your children you can draft a parenting plan (which is not legally binding) or consent orders (legally binding). If you cannot agree, you may need to seek court parenting orders.

Parenting Plans
A parenting plan helps you and your former partner set a clear structure on who has care of any children and when. You are also able to easily update and amend parenting plans if both parties agree to the changes.

Generally, the more amicable you are towards your former partner the better for your children it will be. A parenting plan is a very diplomatic approach which can help preserve the relationship between parents.

If you are concerned that your parenting relationship may deteriorate with time you, may consider applying for consent orders which are legally binding and enforceable on each party.

Consent Orders
If you and your former partner agree on parenting arrangements for your children but you want an agreement that is legally enforceable and binding, you can apply to the Court for Consent Orders. This means that you and your former partner are asking the Court to make binding Orders in the terms you have agreed. You and your partner can mutually agree to deviate from the Orders from time to time, but the Orders provide a status quo that will apply at all other times.

Once a parenting order is in place you must both adhere to it. You may need to encourage your children to spend time with your former spouse in order to comply with the order.

Parenting Orders made by the Court
In the event that you and your former partner are unable to agree on parenting arrangements, it may be necessary to make a court application for Parenting Orders. This means that you are asking the Court to decide the parenting arrangements for you after hearing evidence from both you and your former partner. When making an application for parenting orders, it is generally a requirement that the party provide the court with a copy of a Family Dispute Resolution Certificate evidencing that they attempted Family Dispute Resolution. There are some exemptions to this requirement, such as where there is a history of family violence.

When you make an application for parenting orders, you will tell the Court what Orders you would like made and your former partner will do the same. The Court has discretion to make any Orders it thinks are in the best interests of the children, so it is not required to choose between what you want and what your former partner wants – the Court may think that different orders better meet the best interests of your children, or they may adopt some of your proposals but not others.

In deciding what orders to make, the Court will have regard to the matters set out above in the section titled, “The Family Law Process (parenting matters)”.

Once a parenting order is in place you must both adhere to it. You may need to encourage your children to spend time with your former spouse in order to comply with the order.

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THE PROCESS

This practice is about ensuring we are technically correct, using non-defensive, personal and transparent interaction: compliant within the constraints of our legal obligations; provide clients with the security of a solid practical process during times of heightened stress; and that expectations are clear.

- Collaborative

 

icon-collaborativeCollaborative law offers an alternative method of resolving the issues that arise from the breakdown of a domestic relationship. Collaborative law offers a solution that is tailored to your individual circumstances.

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- Mediation

 

icon-mediationMediation is a cost-effective meeting of the parties to facilitate the resolution of issues without parties having to litigate.

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- Negotiation

 

icon-negotiationNegotiation involves exploring what is most important to each party and trying to reach a resolution that both parties would be willing to settle with and that meets the best interests of the children. You may gain in some aspects but make concessions in other aspects in order to reach a successful resolution.

Through this process of negotiating the various issues that are important to the parties, and consideration of the various needs of the children, the parties may reach agreement.

Negotiation often occurs in conjunction with the other processes described below.

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- Passionate Advocacy

 

icon-passionate-advocacyOur success is based on our insightful and innovative approach to client interaction and dispute resolution. We recognise that we deal in areas of law that cuts to the very heart of our client’s personal lives and we pride ourselves on offering personal attention to the details of every matter by offering a unique and personalized approach.

- Litigation

 

icon-litigationSometimes parties are unable to reach agreement to resolve their matter and they need to ask the court to make a determination. When the parties engage in court proceedings, this is called litigation.

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