Child Custody Lawyers in the Hills District and Sydney
At Arnold Hills, we understand that managing parenting arrangements following separation can be emotionally challenging and difficult to navigate. We provide clear, strategic and compassionate advice to help you understand your legal position and work towards parenting arrangements that are safe, practical and appropriate for your family.
CHILDREN AND PARENTING
Following separation, parents often need to make important decisions about their children’s care and future arrangements. Navigating these decisions can be emotionally challenging and complex. There are several ways parenting issues can be resolved. The most appropriate approach will depend on your family’s circumstances and the issues in dispute.
What is parental responsibility?
While the term ‘child custody’ is commonly used, Australian family law instead refers to parenting arrangements and parental responsibility.
Under the Family Law Act 1975 (Cth) (Act), parental responsibility refers to the legal duties, powers, responsibilities and authority that parents have in relation to their children. This includes responsibility for making decisions about their children’s care, welfare and development, including major long-term decisions concerning education, health, religious and cultural upbringing, name and significant changes to living arrangements.
Following separation, both parents generally retain parental responsibility unless a court order provides otherwise.
Parenting arrangements
Where parents reach agreement about parenting arrangements, the agreement can be recorded in a parenting plan or, if they wish to make their agreement legally enforceable, consent orders. Where agreement cannot be reached, an application may be made to the court for parenting orders. Some of the parenting arrangements parents need to consider include:
- where the child will live;
- how the child will spend time with each parent, their grandparents and other significant people;
- how the child will spend school holidays, birthdays and special occasions;
- changeover arrangements;
- schooling and education;
- medical treatment and health care;
- religious and cultural upbringing;
- how decisions about major long-term issues will be made; and
- how overseas travel will be managed and who will retain the child’s passport.
Recording and formalising your agreement
Following separation, parents may reach agreement about parenting arrangements in several ways, with different options available to record or formalise those arrangements.
Oral parenting agreement
Many parents reach informal verbal agreements about their parenting arrangements. However, these agreements are not legally enforceable and may give rise to disputes if disagreements arise in the future.
Parenting plan
A parenting plan is a written agreement between parents that sets out arrangements for the care of their children following separation. A parenting plan does not involve the court and is generally a cost-effective option. However, it is not enforceable in the same way as parenting orders.
Parenting orders
Where parents cannot reach agreement about parenting arrangements, either parent may apply to the court for parenting orders. Parenting orders are legally binding and enforceable. They may be made by consent where parents reach an agreement or determined by the court where the matter remains in dispute.
Determining a Child’s Best Interests
When deciding whether to make a particular parenting order under the Act, the court must regard the best interests of the child as the paramount consideration.
In contested parenting proceedings, the court must consider the factors set out in section 60CC of the Act when determining what is in a child’s best interests, including:
- what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of the child, and each person who has care of the child;
- any views expressed by the child;
- the developmental, psychological, emotional and cultural needs of the child;
- the capacity of each person who has, or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
- the benefit to the child of being able to have a relationship with the child’s parents and other people who are significant to the child, where it is safe to do so; and
- anything else that is relevant to the particular circumstances of the child.
When considering what arrangements would promote the safety of the child and each person who has care of the child, the court must also consider any history of family violence, abuse or neglect involving the child or a person caring for the child, and any family violence order that applies or has applied to the child or a member of the child’s family.
Additional considerations also apply with respect to Aboriginal or Torres Strait Islander families.
Parenting arrangements: getting started and what to expect
Every family is different, but here is what you can generally expect when working with Arnold Hills Lawyers.
Speak with us
Obtaining legal advice early is prudent. We will start by understanding your family’s circumstances, concerns and what you hope to achieve. We will provide you with legal advice, explain your options and recommend the next steps for your matter.
Working towards an agreement
Where appropriate, we will assist you with reaching an agreement through negotiation, family dispute resolution (such as mediation) or collaborative practice, with the aim of resolving your matter without contested court proceedings. This is a helpful step in resolving most parenting matters, however, attending mediation is also a requirement in most cases before filing a parenting court application.
Formalising your parenting arrangements
Where agreement is reached, we will assist you in recording the agreed parenting arrangements in a parenting plan or formalising them through legally binding and enforceable consent orders.
Court proceedings where necessary
If agreement cannot be reached or court intervention is required, we will advise and represent you in parenting proceedings, with your children’s best interests as the paramount consideration. Once the court makes parenting orders, each person affected by the order must comply with the orders.
Book your free initial 15-minute consultation to understand your options and next steps.
Contact UsSpeak with Arnold Hills, parenting and child custody lawyers in the Hills District
We are experienced child custody lawyers that can advise you on parenting arrangements following separation.
After assessing your matter, we will advise you on the dispute resolution pathway best suited to your family. Our aim is to help you resolve your parenting matter by agreement, through negotiation, mediation, family dispute resolution or collaborative practice, and to avoid court proceedings where possible.
Once agreement is reached, we will assist you with recording and formalising your parenting agreement. This can be done by way of a parenting plan or consent orders.
We can also advise and represent you where court proceedings are required. We are experienced in representing clients before the Federal Circuit and Family Court of Australia in complex parenting matters involving safety and risk issues, urgency and family violence.
We also advise and represent clients in matters where the other parent is not complying with parenting orders.
We assist clients throughout the Hills District, including Castle Hill, Norwest and Rouse Hill, as well as clients across Sydney, with parenting arrangements, parenting plans, consent orders and parenting proceedings.
Contact Arnold Hills to arrange a confidential consultation about your parenting matter.
Contact UsFrequently Asked Questions
What is child custody called in Australia and what does it include?
In Australia, the term “child custody” is commonly used, but it is not the terminology used under the Family Law Act 1975 (Cth). Instead, Australian family law refers to parenting arrangements, parenting orders and parental responsibility. Parenting orders can deal with matters including who a child lives with, the time the child spends with parents or other people, communication, parental responsibility and decision-making about major long-term issues, and other aspects of the child’s care, welfare and development.
What is parental responsibility?
Section 61B of the Family Law Act 1975 (Cth) provides that parental responsibility means the duties, powers, responsibilities and authority that, by law, parents have in relation to their children. Subject to any court order, each parent of a child under 18 continues to have parental responsibility for their child following separation, and this is not affected by the separation, or by either parent remarrying.
Do parents automatically have equal custody after separation?
No. There is no presumption that a child must spend equal time with each parent. There is also no presumption of equal shared parental responsibility. If the court is required to determine parenting arrangements, the child’s best interests are the paramount consideration, and the appropriate arrangements will depend on the circumstances of the child.
What is the difference between a parenting plan and consent orders?
A parenting plan is a written, signed and dated agreement between parents about parenting arrangements. It is not legally enforceable in the same way as a court order. Consent orders are parenting orders made by the court with the agreement of the parties. Once made, they are legally binding and enforceable. The court must be satisfied that proposed parenting consent orders are in the child’s best interests before making them.
Do I have to attend family dispute resolution before applying for parenting orders?
Parties are generally required to attempt Family Dispute Resolution before commencing parenting proceedings. Unless an exemption applies, an applicant must generally provide a current section 60I certificate when filing an application. Exemptions may be available in circumstances including urgency, family violence, child abuse, relevant risks or where a person is unable to participate effectively in Family Dispute Resolution. It is important to obtain legal advice relevant to your particular circumstances.
At what age can a child decide which parent they want to live with?
There is no fixed age at which a child can simply decide where they will live. When determining a child’s best interests, the court must consider any views expressed by the child. However, a child is not required to express a view, and the significance given to any views expressed will depend on the child and the circumstances of the particular matter.
What if my parenting matter involves family violence or an urgent safety concern?
Parenting matters involving family violence, child abuse or other safety concerns may require different procedures and, in some circumstances, urgent court orders. An exemption from the section 60I certificate requirement may be available. It is important to obtain legal advice promptly where there are concerns about the safety of a child or another person and contact the relevant authorities where required.
