Arrangements for children after separation

Children’s rights

The Family Law Act states that the best interest of the child is the most important concern. The main considerations in determining the best interests of the child include-

• ·         The benefit of the involvement of both parents in their lives

• ·         Protection from physical, psychological and emotional abuse, neglect, or family violence

• ·         Receiving adequate and proper parenting

• ·         The parent’s ability to provide adequate care, welfare and development of the child

Parental duties and responsibilities

The Family Law Act states that parents have responsibilities, including-

• ·         Caring for the child’s daily needs

• ·         Provision of suitable housing

• ·         Provision of appropriate education

• ·         Ensuring children are financially supported

There is a presumption of equal shared parental responsibility. Therefore, both parents hold equal responsibility for such aspects as schooling decisions, living arrangements, medical treatment and financial support. This equal shared parental responsibility does not mean equal time.

This shared responsibility does not apply when there are reasonable grounds to believe that one parent has engaged in the abuse of the child or another child in their care, or in family violence.

Agreements

Parents can make arrangements for the care of their child in the following forms-

• ·         Informal verbal agreements

• ·         Informal written agreements

• ·         Parenting plans

• ·         Consent orders

An informal agreement involves either a verbal or written agreement made by both parents. It is important to note that these agreements are not enforceable in court.

A parenting plan is a written agreement, signed and dated by both parents. This plan sets out arrangements for the child, and is also not enforceable in court. A parenting plan is developed through mediation, which parents are required to attend prior to going to court. Mediation can be accessed through the Family Relationships Centre, Legal Aid (solicitor assisted) or a private Dispute Resolution Practitioner.

A parenting plan can be converted into a consent order. A consent order is an agreement made between the parents, and is later filed in the court. They are an enforceable agreement, drafted in specific legal language. Legal Aid will not fund an application for breach of a consent order.

Family Dispute Resolution

If parents wish to obtain a parenting plan they must attend Family Dispute Resolution (FDR). This is not always an appropriate avenue, so FDR practitioners will assess client suitability before proceeding. Exceptions from attending FDR include urgent applications, allegations of family violence, or if the child is at risk of violence or abuse. If parents cannot agree at FDR then they may proceed to court. However, a Section 601 Certificate must be issued by the FDR practitioner before an application can be made to court.

Family violence is an important factor which the court must consider. This will affect-

• ·         Whether a Family Dispute Resolution certificate is needed to go to court

• ·         Decisions regarding the best interests of the child

• ·         Decisions about parental responsibility

• ·         Decisions regarding time spent with children

• ·         Forms of communication

How the courts make parenting decisions

Parenting decisions are made in the Family Court of Australia, The Federal Magistrates Court and The Local Court of New South Wales. Courts will make a range of decisions regarding the child, such as-

• ·         Whether the child lives with one parent, or shared care between both parents

• ·         That the child spends significant or substantial time with the parent they do not live with, or no time at all

• ·         That a parent be able to, or be restrained from relocating with the child

• ·         How future decisions such as medical treatment, religion or extracurricular activities are made

An order for equal time between both parents is likely to be made if both parents have previously been involved in the child’s life and there is little conflict between the parents. ‘Spending time’ and ‘Communicating’ orders relate to communication between parent and child. They can determine where and when contact takes place, changeover details and the form of communication.

A court will not make orders for a parent to spend time with a child if it is considered that the child would be exposed to an unacceptable risk of harm.

Child Support

Parents hold a financial responsibility to their children. This can be done through a private agreement, a formula assessment by the Child Support Agency (CSA) or a court order. In determining a child support payment the CSA looks at-

·         The income of both parents

·         The nights the children are in each parents care

·         The costs of the children

A Child Support Payment can be varied if a change in circumstances occurs by making an application to the Child Support Agency.

Further Contact Information

Child Support Agency Ph: 131 272

Child Support Service Ph: 1800 451 784

North and Northwest Community Legal Service Ph: 1800 687 687

These factsheets are provided for the purpose of legal information. They should not be used as a substitute for legal advice. Should you have a specific legal problem, please seek legal advice from a qualified practitioner. The factsheets are correct at the day of their authorship, the author cannot warrant their accuracy past that day. The author cannot be liable for any inaccuracies caused by changes in legislation, common law or policy. The factsheets have been authored with a view as to the law of New South Wales, Australia. These factsheet do not apply to other jurisdictions unless expressly stated.