When parents separate, the arrangements for the care of their children need to be determined and decisions made about whom the children will live with, how much time they will spend with the other parent and other significant people in their lives, and what will happen on special occasions such as birthdays and at Christmas. Parents also need to work out how following separation they will make decisions relating to major issues in their children’s lives such as where they will go to school, what religion they will be brought up in, whether they will have a certain medical procedure undertaken and the like.
In late 2008 new laws came into place that now formally recognise same sex parents of children born through assisted conception procedures, approved adoption procedures and approved surrogacy procedures where both parents consented to the procedure and were in a de facto relationship at the time of conception.
Determining what arrangements are going to be best for your child/ren
Under the Family Law Act 1975 (Cth) any arrangements made for children are required to be in their best interests. There is no law or presumption that children must spend equal amounts of time with both of their parents, or that both parents will be involved in all major decision making however this may very well be what is in a child’s best interests.
Following recent amendments to the Act (The Family Law Amendment Act 2023) there is now a single non- hierarchical list of considerations to be taken into account when determining what arrangements are in the best interests of a child including consideration of:
- The arrangements that will promote the safety of the child and their carers
- The views of the child
- The needs of the child – including their psychological, emotional and cultural needs
- The capacity of parents/ caregivers to provide for the child’s needs
- The benefit to the child of being able to have a relationship with the child’s parents and any other significant people where it is safe to do so; and
- Any other factors relevant to the particular circumstances of the child.
Further additional considerations are also relevant for Aboriginal and Torres Strait Islander children.
Sometimes parents agree on the arrangements that are in the best interests of their child/ren. Once agreement is reached the parents can either implement an informal arrangement; enter a parenting plan which sets out arrangements though is not legally binding; or alternatively apply to the Court to seek that the Court make Parenting Orders for the agreed arrangements by consent.
At other times, parents cannot agree on what arrangements are best for their children or on a specific aspect of their children’s care, welfare and development. There may also be significant safety concerns for the child or a party to proceedings that require further assistance from the Court. In these situations, Orders setting out arrangements for the child can be made by the Court either by agreement between the parents reached throughout the Court process, or, if agreement cannot be reached, upon the Court conducting a hearing into what is in the child’s best interests.
At Doolan Callaghan Family Lawyers, we appreciate the complexities that arise when families separate and the difficulties that are faced by parents and children. We understand that separation can be one of the most stressful times for parents and children and that it often the case that communication with your ex- partner is strained, trust levels are low, and children’s stress levels are high. Our focus is on assisting you so that you have stability and certainty in your parenting arrangements and where possible the opportunity for ongoing conflict is minimised.
Our Family Lawyers can make recommendations to you about appropriate parenting arrangements in your individual circumstances and can assist you to negotiate the best possible outcome for your children. If it is necessary to obtain the Court’s assistance to make a decision about parenting arrangements, we are able to advise you as to the Court process including the Court’s Pre-action procedures in parenting cases and our clients are able to draw on our wealth of Court experience so as to achieve workable solutions that are consistent with their children’s best interests.
