Children’s Matters

Following Separation

Following a separation, you and your former partner will be faced with organising the ongoing care of your children, as well as determining how to divide property, finances, money and personal belongings.

Children’s matters are expected to be resolved

The family law system[1] imposes a large emphasis on parties agreeing between themselves about any family law matter involving children.

Parties are not permitted to commence court proceedings in a dispute about a child unless they complied with prescribed “pre-action procedures”[2], that is attending making appropriate offers of settlement and obtaining a certificate from an accredited family dispute resolution practitioner. [3]

Consent Parenting Orders

If parties reach an agreement about their family law matter involving a child, they may formalise it legally by entering into consent orders which the Court will make. Parenting orders  may include orders about:

1. With whom the child will live primarily.[4]
2. What access the other parent will have.[5]
3. Whether the parents have joint parental responsibility[6] or one parent has sole parental responsibility.

Once final parenting orders are made by the Court, they cannot be varied or discharged except if a change of circumstances justifies varying or discharging them.[7]

As an alternative, parties may choose to enter into a Parenting Plan between them as described below.

Parenting Plans

An alternative method to consent orders is parties entering into Parenting Plans.[8] A Parenting Plan is an informal written agreement between parents in which parents agree on how to raise their children together. The Family Law Act 1975 (“FLA”) makes provision for Parenting Plans although they are not filed in court and are not legally binding.[9]

Parenting Plans have become a very popular tool used by parents to agree in arrangements for the care of their children into the future.

Best Interest of the child in disputed parenting matters

If the Court must decide a family law dispute involving a child, the paramount consideration is the best interest of the child. [10]

The Court must consider various matters listed in the Act including:

1. An arrangement that will promote the safety of the child; and  each person who has care of the child.
2. The child’s views.
3. The child’s needs – developmental, psychological, emotional, and cultural needs
4. The capacity of the proposed carers.
5. The benefit of the child maintaining relationship with each parent.
6. Any history of family violence, abuseor neglect (b)  any family violence order that applies or has applied to the child or a member of the child‘s family.[11]

Relocation of children away from a parent

A common issue that courts must address is when a parent wishes to relocate with a child perhaps to another city within Australia or overseas thus separating the child from the other parent. These are known as “relocation” cases.

Australians are among the most mobile populations in the world. More than 40% of us change address every five years, about twice the global average.[12]

A parent may not relocate with a child away for the other parent unless by consent or by leave of a court. The parent proposing to relocate, would need to seek the Court’s permission to relocate.[13]

When a Court must decide a relocation case, often it becomes a dispute about whether the child should live primarily with the moving parent or the parent staying.

In every relocation case, considerations about the logistics of travel  for the child and parents for the purpose of spending tie with the parent who does not relocate become important.

Balancing various considerations – the Court must balance various considerations  before coming up with a decision whether or not a parent may relocate with a child:

“…the proper approach to be adopted in a relocation case is a weighing of competing proposals, having regard to relevant section…[now s 60CC] factors, and consideration of other relevant factors, including the right of freedom of movement of the parent who wishes to relocate, bearing in mind that ultimately the decision must be one which is in the best interests of the child.”[14]

Overseas relocations – when a parent wishes to relocate with a child overseas, there are other considerations which become quite crucial including, for example, whether the country where the child will relocate to is a signatory to the 1890 international treaty known as Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention). Signatory countries to the treaty, as for example, say, Singapore, will enforce an order made by a Court in another signatory country like Australia. Assuming a scenario where an Australian Court gave leave to a party to relocate out of Australia but return the child for the December/January holidays, the Singaporean Court will enforce the Australian Order.[15]

[1] Made up of the Family Court (Federal Circuit and Family Court of Australia or FCFCOA) , the Family Law Act, 1975 (Cth) (“the Act”)and the Court’s Rules

[2] Chapter 4 and Schedule 1 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021

[3] See section 60(I) of the Family Law Act, 1975 (Cth) – https://classic.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s60i.html

There are exceptions to the requirement to obtain a section 60(I) Certificate in cases considered urgent or where domestic violence is present.

[4] Often referred to as “custody” although the legal term under the legislation is “live with”

[5] Under the legislation, referred to as “spend time with” including face to face time, time via telephone and video.

[6] Responsibility to make longer term decisions including about a child’s health, welfare and education.

[7] See section 65 DAAA of the Act

[8] See article in our website about Parenting Plans – https://turinimckeanlaw.com.au/parenting-plans/

[9] Although not legally binding, a Parenting Plan is admissible in Court during any future Court proceedings as evidence that a parenting agreement was previously entered into by the parents.

[10] Section 60CA of the Act – see at https://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/fla1975114/s60ca.html

[11] Additional considerations-such as the child‘s right to enjoy the child‘s Aboriginal or Torres Strait Islander culture, country and language.

[12] https://theconversation.com/australians-are-moving-home-less-why-and-does-it-matter-133767

The article described that internal migration has decreased in recent years but it is still substantial.

[13] Obviously, relocation is understood as moving a substantial distance away not within a city or say between cities or towns in close proximity such as  Canberra and Queanbeyan or Albury and Wodonga.

[14] The Full Court at Bolitho & Cohen [2005] FamCA 458 citing the previous High Court decision of U v U [2002] HCA 36.

[15] Some important countries from an Australian perspective, which are not signatories of the 1980 Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention) include China, Afghanistan, India, Indonesia Iran, Pakistan Lebanon, Malaysia and Vietnam.