One of the most difficult aspects of a relationship breakdown is implementing arrangements for the children's well-being and their future.
There is no automatic rule that children should live with either their mother or their father after separation.
The best arrangement for a child/ren upon the breakdown of a relationship is one where both parents are child-focused, minimize ongoing conflict and come to an agreement in relation to the short term and long term care for the child/ren. It is common for children to live primarily with one parent, and then spend time and communicate with the other, as agreed between the parties. Such agreements are called "Parenting Plans". To read more about Parenting Plans, refer to our factsheet entitled "Parenting Plans".
Counselling, mediation and other services are available to assist the parents in reaching agreement.
If parents are unable to come to an agreement in relation to parenting matters, then they may apply to the Family Court or Federal Magistrates Court, for "Parenting Orders". Even when a Court Application is filed, it is possible to reach an agreement and make your own decisions regarding your child/ren at any time prior to the final hearing.
When determining the issue of Parenting Orders, the Court must regard the best interests of the child as the overriding consideration.
In some cases the Court may order that a Family Report be prepared. To read more about Family Reports, refer to our factsheet entitled "Family Reports".
In determining parenting matters, the Court must apply a presumption that it is in the child/ren's best interests for their parents to have equal shared parenting responsibility for their child/ren. This is not a presumption of equal time, although that too may be appropriate.
While Parenting Orders are usually applied for by parents, any person concerned with the care, welfare and development of the child/ren including grandparents, step-parents and other persons may also apply for Parenting Orders.
Once Orders are made they are enforceable by the Court and the Court can impose penalties on any person who disobeys the orders.
Parenting Orders can always be reviewed while the child/ren is/are under 18 years of age. However, the Court will not review existing Parenting Orders unless there has been a change in circumstances involving the child.
In determining the best interests of a child, the Court considers the primary considerations of the benefit of the child having a meaningful relationship with both of their parents and the need to protect the child from harm, together with the following additional considerations:
Further details with respect to parenting matters may be obtained by contacting one of our Solicitors, who can offer practical legal advice and guidance, ensuring that your children are well looked after.