Who will keep the kids?

Navigating parental responsibilities and care arrangements for children after a separation can appear overwhelming, but we are here to help.

In Australia, parents are encouraged to reach parenting agreements, including decisions about where the child will live and how they will spend time with each parent. These agreements can be formalised as parenting plans or consent orders. When parents cannot agree, the court may intervene and make orders specifying parenting arrangements.

Best Interests of the Child

The paramount consideration in all parenting matters is the best interests of the child. When determining what is in a child’s best interests, the court considers the following primary considerations set out in section 60CC(2) of the Family Law Act 1975 (Cth):

  • The benefit to the child of having a meaningful relationship with both of the child’s parents; and
  • The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

There are also additional factors outlined in section 60CC(3) that the court will take into account, including:

  • Any views expressed by the child;
  • The nature of the relationship of the child with each of the child’s parents and other significant individuals (grandparents and other relatives);
  • The parent’s ability to participate in making decisions about major long-term issues and capacity to meet the child’s physical, emotional and financial needs;
  • The likely effect of any changes in the child’s circumstances, including the effect on the child of separation from either of their parents;
  • The maturity, sex, lifestyle and background of the child and of either of the child’s parents; and
  • Any family violence involving the child or a member of the child’s family.

Parental Responsibility

Parental responsibility is defined as all duties, powers, responsibilities and authority parents have in relation to children.

Parental responsibilities typically include:

  • Providing for the child’s day-to-day care, such as food, clothing and shelter; and
  • Making important long-term decisions about the child’s education, health and religious upbringing.

When making a parenting order, the court must apply a presumption that it is in the best interests of the child for their parents to have equal shared parental responsibility for the child. However, the exception to this presumption is in cases of abuse or family violence where it is not in the best interests of the child for the parents to have equal shared parental responsibility.

Family Dispute Resolution

The Family Law Act 1975 (Cth) requires a person to attempt to resolve disputes about parenting matters using family dispute resolution (FDR) services before applying to a court for a parenting order. FDR is a practical way for separating families to try to resolve any disagreements and make arrangements for the future without going to court. There are privately funded FDR services and government funded services such as Relationships Australia or Relationships Matters.

Formalising Parenting Agreements

Parenting Plans:

A parenting plan is an informal, written agreement that outlines how parents will share responsibilities and make decisions regarding the care and upbringing of their children.

Parenting plans are a common way for parents to establish arrangements for their children without the need for a formal court order. However, it is important to note that parenting plans are not legally binding and can be altered at any time.

Parenting Orders:

Parenting Orders are orders made by the Court that provide for the child’s parenting arrangements in a legally enforceable way. The Family Court can issue various types of parenting orders (either by consent or decided by a Judge), including:

  • Sole parental responsibility, where one parent makes all major decisions;
  • Joint parental responsibility, where both parents make all major decisions together;
  • Orders regarding the child’s living arrangements such as primary residence and visitation;
  • Orders addressing issues like communication, relocation and travel; and
  • Specific orders to protect the child’s safety, such as supervised visitation.

How can we help?

Our team of Geelong family lawyers are experienced in providing advice regarding parenting matters and can assist in the drafting of a parenting plan, an application for consent orders and initiating proceedings where required.

If you are recently separated and wanting advice regarding parenting matters, please do not hesitate to contact our office on (03) 5292 1938 to arrange an initial consultation.