At McCarthy Durie Lawyers, our experienced family lawyers can assist you with resolving the parenting arrangements for children after separation.
- Parenting Arrangements
- Consent Orders vs Parenting Plans
- Interstate or International Relocation
- Unacceptable risk of harm
- Child abduction
- Time arrangements for grandparents & other significant persons
When parties separate conflict can often arise in relation to what arrangements for will be best for children. Disputes between parents in relation to their children are governed by the Family Law Act 1975 (“the Act”), unless you are in Western Australia in which case it is the Family Court Act 1997.
- Parental Responsibility
Under the Act, both parents have what is known as “Equal Shared Parental Responsibility” (“ESPR”). There are exceptions as to when ESPR will apply such as cases involving domestic violence and child abuse.
ESPR means that both parents are to make decisions about the major long term decisions for their children together such as education, medical decisions, name changes and where a child should live.
ESPR also means that parents can independently make decisions in relation to non-major short-term decisions when a child is in their respective care.
- Live with and Spend time with
Where a child should live and how much time they should spend with the other parent and/or grandparents is often a significant point of dispute in parenting matters.
The Act provides that when considering the parenting arrangements for children the Court must have regard the best interests of the child as the paramount consideration.
In determining what will be in a child’s best interests, the Court is to have regard to the following, known as the primary considerations (section 60CC(2)):
1) The benefit to the child of having a meaningful relationship with both parents; and
2) The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The Court must then also have regard to what is known as the additional considerations under section 60CC(3). Some of these considerations include; any views expressed by the child, the practical effect of a child communicating with and spending time with a parent and any family violence.
It is important to note that where the presumption of Equal Shared Parental Responsibility applies, the Court must consider whether “equal time” is appropriate. If, for whatever reason, the Court determines that “equal time” is not appropriate the Court will then consider whether an Order for “significant and substantial time” is appropriate. This approach will apply so long as it is reasonably practicable and in the best interests of the child.
We can assist in explaining the principles that the Court will consider when determining your parenting matter and applying those to your particular circumstance. Each case is different and we recommend that you obtain legal advice prior to entering into any parenting arrangements.
Consent Orders versus Parenting Plans
We can assist in negotiating and drafting agreements to formalise parenting arrangements and provide for parental responsibilities.
There are two ways to document any agreement reached with respect to parenting matters, either by way of Consent Orders or a Parenting Plan. It is important to note that there a difference between these documents.
We can provide advice in relation to which approach will be the most appropriate based on the particular circumstances of each case.
- Consent Orders
Consent Orders are filed with the Court and are binding. This means that if one party does not comply with the Orders made, the other party has options available to file an Application with Court to have them enforced. Once Consent Orders have been made, they can only be varied in exceptional circumstances.
- Parenting Plan
A Parenting Plan is not binding agreement between parents and is not filed with the Court. This means that if one party does not comply with the terms of the Parenting Plan, it is not enforceable by the Court. Despite this, a Parenting Plan can be more flexible if you forsee that the parenting arrangements are likely to change frequently.
We recommend obtaining advice as to which type of agreement will be best suited to you matter prior to entering into any agreement.
Interstate and International Relocation
In some circumstances, one parent may wish to relocate interstate or internationally. This may be for reasons such as being closer to family or financial security.
When determining whether a child relocate nationally or internationally, the best interests of the child will be the paramount consideration. The Court will have regard to the right of freedom of movement of a parent and the relevant factors set out in Section 60CC of the Act.
If you have concerns that the other party may relocate with a child without your consent, we recommend you contact us urgently.
Unacceptable risk of harm
In some cases there may be concerns with respect to physical and psychological harm or concerns regarding sexual abuse towards a child. One parent may allege that the other parent poses what is commonly referred to as “unacceptable risk of harm”.
The Court is tasked with having regard to:
- The magnitude of the potential harm to a child;
- The magnitude of the existence of the risk; and
- What steps can be taken to mitigate any risk.
In assessing whether there is a risk that something may happen, the Court has found that so long as there is a proper basis as to a possibility of risk, those “possibilities” are a legitimate basis for finding that such a risk exists.
If you have concerns with respect to a parent posing a risk to a child, we recommend you seek urgent advice.
In some instances, one parent may take steps to remove a child from the care of the other parent and abscond intra-state, interstate or in some instances, internationally.
If a child has been unlawfully removed from Australia, the matter may fall within the Hague Convention. We can provide you with advice in relation to steps you can take to seek for your child to be returned to Australia.
Whilst we aim to assist you to resolve any dispute regarding the removal of a child through negotiation, we are skilled to represent you at Court should you need to file urgent court proceedings.
If you are concerned that one parent may take steps to remove a child, or has taken steps to remove a child, we recommend you seek urgent advice. We also recommend you follow the link below as to whether the Country you believe your child has been taken to is part of the Hague Convention.
Time arrangements for Grandparents & Others
It is a common misconception that only parents are able to bring an Application before the Federal Circuit Court or Family Court of Australia to spend time with a child.
The Act makes clear that children have a right to see not only their parents but grandparents and any person concerned with the care, welfare and development of a child.
If you have concerns regarding the welfare of a child, or you are concerned that a child is being deprived of a meaningful relationship with you, we recommend you seek advice in relation to the options available to you.
The law as it relates to surrogacy is complex, in Queensland the law surrounding surrogacy is governed by the Surrogacy Act 2010 “It is important to note that in Australia commercial surrogacy is illegal, this is where the surrogate receives compensation. What is known as “altruistic surrogacy is permitted, this is where the surrogate receives no compensation.
If you live in Queensland, you need to be aware that surrogacy arrangements cannot be enforced.
In order to enter into a surrogacy arrangement the following must apply:
- The surrogate and intended parents must be at least 25 years of age;
- All parties to the surrogacy arrangement must obtain independent legal advice;
- All parties to the surrogacy arrangement must obtain counselling prior to entering into the arrangement.
We can assist in providing advice in relation to surrogacy arran and in drafting agreements to formalise surrogacy arrangements.