Familv Law terms
Lives with – who the children will live with
Spends time with and/or communicates with – how much time the children will spend with the parent they do not live with.
Parenting Orders – Orders made by consent or by the Court regarding who the children live with or spend time with.
Parental Responsibilities – issues such as where the children attend school, religion etc. If there are no parental responsibility orders then it is assumed that both parents have joint responsibility for decisions.
The following are a small selection of commonly asked questions. The answers are based on what is usual, however your circumstances may well be different to the usual and more specific advice should be sought. There is a Q&A page on this website from which you can contact me if you wish more information tailored to your situation.
The Family Court maintains the same jurisdiction with regard to children whether their parents are married or not.
The test for what time is spent with each parent is “the best interests of the child”.
What do I need to think about?
When you separate common issues that you need to address include but are not limited to who the children will live with, how much time will they spend with the non resident parent and how will the transfer between them take place, and how will major decisions be made if questions arise concerning the children’s education, healthcare, etc. Many people are able, often with the help of family and/or friends, to come to agreement about some or all of these issues, however, for those who need help there are various agencies to call on, one of which is a good family lawyer.
I had to leave my children behind when I moved out. What rights do I have?
You should see a lawyer immediately in order to apply for an interim order. The longer you wait before applying for your children to live with you the more opportunity their other parent will have to argue that they are settled and that they should remain where they are. This is not, in all circumstances, a determining factor, but if you are considering separating and want to have the children live with you it is usually a good idea to keep them with you if at all possible.
My ex partner is still angry and we can’t talk about arrangements for the children. I’ve been told to see a Mediation Service. How will this help?
If you are having difficulty agreeing about the arrangements it may be helpful to see a counselling/mediation service such as Relationships Australia (Tel: 1300 364 277). The role of the counsellor/mediator is to help you and the children’s other parent or significant other person to reach decisions about the children.
Mediation is a method of negotiating decisions which is most likely to work if both parties are honest and open and if they can negotiate with each other as equals, however this is not a necessity and a successful outcome is still possible even when conversation is too difficult. It is not necessary for both parties to be in the same room during the mediation session. Meetings may take place by phone or by shuttle negotiation meaning that you and the other party will be in separate rooms and the mediator will move between you
From 1 July 2007 you will not be able to start court proceedings without having tried mediation unless you come within one of the exceptions such as family/domestic violence. If legal proceedings have started, the court may order counselling using the Family Court counsellors.
What are our options if we aqree?’
If you can agree about the arrangements with your former partner you do not have to formalise the agreements but you can make your agreement binding and enforceable if you wish by lodging it with the Family Court. You do not have to personally appear in court to formalise a parenting agreement. A lawyer can prepare the documents or you can write up your own parenting orders using a Consent Order Kit that is available from the Family Court or under the Forms and Do It Yourself Kits section of this website.There is no cost for lodging parenting orders with the court.
Please Note: Any agreement formalised this way can be changed at any time by agreement, however, if either party does not agree to a suggested change the court will require that there has been a substantial change in circumstances that has a direct impact on the children if it is to agree to hear the case. Easily anticipated events such as re-marriage of either parent or the increased age of the child will not be sufficient reason on their own to change the orders.
What if we still can’t agree?
Many people use lawyers to negotiate arrangements about their children. This is helpful when they do not feel comfortable or safe talking directly to their former partner or the other party involved.
If you cannot reach a satisfactory agreement you can apply to the Family Court or the Federal Circuit Court for particular orders which are made by a judge and will be enforceable by law.
What does the Court consider when makinq decisions about children?
The Family Law Act refers to parent’s duties and responsibilities and to children’s rights. The children’s best interest is paramount. Children have a right to know and be cared for by both of their parents and other significant people to their care, welfare and development. Grandparents and step-siblings are recognised by the court as persons with whom the child should normally spend time. The court will consider what the parents want as well, but it is most concerned about the children and protecting their interests.
Can I obtain urgent orders?
There are a variety of circumstances in which it may be possible to obtain urgent orders, such as the other parent refusing to return children after spending time with them or if there is a threat by one of the parents to take them perhaps interstate or overseas without the agreement of the other parent. You should seek immediate legal advice. In very urgent matters the court will hear your application in a short time frame.
Does the Court take domestic violence in to account?
The court takes into account any incident of domestic or family violence involving your children or any other member of your family. The court will balance the need to protect the children from exposure to violence with their right to know and have a relationship with both parents, however, recent legislation has broadened the definition of violence and is committed to protecting children not only from direct physical and emotional abuse but also from exposure to it between the people in their home environment. The welfare of the child is paramount in family law and the court is looking constantly for ways in which the cause can be promoted.
What if I want to relocate?
If there is a parenting order in place and the other parent will not agree to your move, you should not move without applying to the court for the order to be changed. If you apply to the court for an order enabling you to move interstate, the court will again base its decision on what is in the children’s best interest and the children’s right to know and have a relationship with both parents.
Even if there are no orders in place you should get legal advice before removing a child from the state without the agreement of the other parent. The court has the power to order that children be returned if it is in the best interests of the children to do so.
Costs orders may be made against you if you take a child out of the state against the other parents wishes and without a court order.
What can I do if the other parent takes the children and doesn’t bring them back?
You should see a lawyer immediately to apply for an urgent recovery order. This order enables the State and Federal Police to find and return you children. If you do not know where the other parent has taken the children you can ask for a location order which will enable the court to obtain information about their whereabouts.