Children & Parenting

An Independent Children’s Lawyer (“ICL”) is appointed by the court in many disputes involving children.  These cases are generally the more difficult children’s cases where the issues affecting the children may include:

• drug abuse
• violence
• neglect of children
• serious issues of mental health relating to the children or either or both parents
• alienation of children from a parent
• ages, maturity and wishes of the children
• relocation
• proposal to split siblings
• cultural and religious differences
• special medical procedures

The ICL is appointed to look at the case from the perspective of the best interests of the child.  The ICL does not take sides, act for either party or act on the “instructions” of the child.
The ICL must investigate the matter and present to the court an independent perspective about which arrangements are in the best interests of the child.

The ICL has an obligation to speak with the child unless the child is under the age of 5 years, the child does not want to meet with the ICL or express their views or there are exceptional circumstance. If the ICL meets with the child, they may explain their role in the proceedings and the court process in terms that the child is able to understand. The ICL often speaks to the child’s counsellors, school teachers and school principals to see how the child is progressing and contacts medical practitioners.

The ICL usually arranges a “family report”. A family report is prepared by an experienced Court Child Expert or Family Consultant who is normally a psychologist or a social worker. The family report writer sees the parents, the children and sometimes other family members. The family report makes recommendations regarding what arrangements will best meet the child’s future care, welfare and developmental needs. The court and the ICL are guided by these recommendations.

The ICL examines documents which may be subpoenaed from organisations such as:

• Department of Fairness, Families and Housing – if there have been past allegations or there are current allegations that the children are abused or are at risk of being abused
• Victoria Police – for criminal records of the parties or their current partners
• Schools – for the progress and developmental records of the children
• Medical, psychiatric and psychological records of the children and/or their parents
• Vic Roads – for speeding fines or other motor vehicle-related offences

Ultimately, the role of the ICL is to put independent, objective material to the court and help the court to make a decision that is in the best interests of the child.  The ICL may act as the “honest broker” trying to mediate or broker a settlement between the parties.
For more information, go to: https://www.fcfcoa.gov.au/fl/children/icl

You may need to seek court orders to protect your child/ren before final orders are made. The court has the power to hear urgent applications from parties seeking interlocutory (temporary) orders and/or injunctions.

In some rare circumstances, the court will hear matters that require extremely urgent action and make orders ex parte (without notifying the other party). These are only granted in matters with exceptional circumstances.

With respect to parenting matters, urgent interlocutory orders may be made by the court for a recovery order (for a child to be returned to a parent), a watchlist order (to prevent a party taking a child out of the country) or warrant for arrest (to order that a party attend court).

For more information go to: https://www.fcfcoa.gov.au/fl/children/urgent-app

The law that applies in Australia in relation to the care of children after separation is the Family Law Act 1975 (Cth) (“the Act“).  It states that the most important matter when determining a dispute about the future care of a child, is the best interests of that child. The law changed on 6 May 2024, and the list of factors which the court must consider is shorter.

Best interests of the child

The Act sets out the primary and additional considerations for determining what is in a child’s best interests.

The general considerations are:

• Which arrangements promote the safety of the child and the child’s carers, including safety from family violence, abuse, neglect or other harm
• any views expressed by the child
• the developmental, psychological, emotional and cultural needs of the child
• the capacity of each proposed carer of the child to provide for the child’s developmental, psychological, emotional and cultural needs
• the benefit of being able to have relationships with their parents and other people who are significant to them, where it is safe to do so
• anything else that is relevant to the particular circumstances of the child

For an Aboriginal or Torres Strait Islander child, the child’s right to enjoy their Aboriginal or Torres Strait Islander culture is given particular importance.

A formal agreement for the care arrangements of a child is often not necessary.  Alternatively, an agreement can be formally recorded as parenting orders made by a court or, more informally as a parenting plan.

Parenting orders

There are three key concepts under the Act in relation to children, being:

• Joint decision-making about long-term issues. Until 6 May 2024 this was called “Parental responsibility”. It is the responsibility for making decisions relating to a child’s long term care, welfare or development, such as a child’s schooling, health and religion;
• With whom a child lives – the person/s with whom the child primarily resides; and
• With whom a child spends time – the person/s a child is to spend time with.

A court can make parenting orders setting out each parent’s responsibility to make decisions for a child, including:

• How that responsibility is shared;

• With whom a child lives;

• The time a child spends with and/or communicates with each parent and others;

• The form of consultation between persons responsible for decisions relating to a child;
• Maintenance of a child; and

• Any other aspect relating to the care, welfare and development of a child.

When making parenting orders, from 6 May 2024 the court no longer starts with the presumption that it is in a child’s best interests for the parents to have equal shared parental responsibility.  The court will tailor decisions about parental responsibility (renamed as “joint decision-making” about long-term issues) to the circumstances of the particular child and their guardians.

It is likely that orders for decision-making will be made less frequently than orders for equal shared parental responsibility were made in the past, particularly where there has been family violence.
Parenting orders can be made in favour of grandparents, step-parents, social parents and others who are involved with the children.

For more information, go to: https://www.fcfcoa.gov.au/fl/pd/fam-parenting

One of the most difficult areas of family law practice arises when a parent wants to move, taking a child with them. This may be a move interstate, within the same State (including from one side of a city to another) or overseas.

It is a difficult area in many respects.  It has a significant impact on the arrangements for the care of the child.  The change is very likely to upset the other parent.  One parent inevitably feels like the loser if the child moves away and the parent’s time with that child is altered. 

The main question is whether the proposed relocation is best for the child.

The law before 6 May 2024

The law with respect to parenting arrangements change on 6 May 2024. There is some uncertainty as to whether these changes will impact how relocation cases are decided. The pre- 6 May 2024 law is set out in more detail below, but this must be read subject to the proviso that the courts may decide relocation cases differently.

Principles considered include:

• the best interests of the child are the paramount consideration, but are not the sole consideration
• the application for relocation may be successful even if the reasons are not compelling for the proposed relocation 
• the reasons for the parent’s proposed relocation are only one matter considered
• competing proposals are looked at in terms of their advantages and disadvantages, and the best interests of the child

The court weighs up the parents’ competing proposals and determines the best interests of the child.  Each of the parents must have detailed proposals and explain to the court how their proposals will promote the children’s best interests.

The proposal by the parent seeking to relocate with a child must set out very clearly:

• The place where the child will live
• The school the child will attend including curriculum, extra curricular sport, costs, etc
• The time the child will spend with the other parent and how the costs of travel, and possibly the accommodation of the other parent, will be paid
• The communication the child will have with the other parent

Courts prefer detailed proposals which show that the parent seeking to move has thought about the proposal and designed it to promote the best interests of the child. 

A proposal by a parent seeking to oppose a relocation must set out:

• Where will the child live
• If the child will live with the parent opposing the move, the reasons for this.  Why did the parent not previously apply for the child to live with that parent?
• Can the parent move to the place where the other parent wants to move?

Courts are often reluctant to alter long standing arrangements where one parent has been the primary carer of the child.

However, this is not to discourage parents seeking to oppose relocation.  Not each and every application for relocation will be allowed.  The primary consideration is “what is best for the child”.

International relocations

An international move will, of necessity, place extra strain on the child’s relationship with the non-relocating parent.  The court may be reluctant to allow relocation if it will be difficult to preserve the child’s relationship with the non-relocating parent.

Each case is determined on its merits.  There are no guarantees of the outcome for either parent.  The court tries to do what it perceives is best for the child.

For more information, go to: https://www.fcfcoa.gov.au/fl/children/relocation-travel

Why might the law be different after 6 May 2024?

The factors the court must consider in determining the best interest of a child have changed. Whilst the outcome may be the same, there is no certainty that this will be the case. In addition, as the pathway for determining parental responsibility has changed and it is less likely, particularly where there has been family violence, that there will be equal shares parental responsibility and therefore less likely that there will be equal time orders, or even 9/5 and 8/6 orders. These orders for sharing time with children equally or close to equally created a natural barrier to relocation orders being successful.

We understand that some children have special needs.  We have had experience in negotiating and obtaining parenting orders for children with special or extra needs arising from:

• Autism Spectrum Disorder (ASD)
• ADHD
• Munchausen’s syndrome by proxy
• music or sporting ability
• educational giftedness
• intellectual and learning disabilities

An agreement for the care arrangements of a child should accommodate any special needs of a child.

An assessment by the Child Support Agency can be departed from to meet the increased costs of maintaining a child with special needs.  Special needs do not always arise from a disability, but may arise from a special ability.    Needs are special if they are beyond the usual needs of a child.  Needs which may need to be met include facilities for a child with disabilities, medical expenses, and education.

Maintenance for a child over 18 years of age can be ordered by the court to enable a child to complete their education, or because a child has a mental or physical disability.  In determining the care arrangements for a child, the best interests of the child is the paramount consideration.  When entering into care arrangements for a child with special needs the ability of each party to care for the child and meet the child’s needs are considered.

The Federal Circuit and Family Court of Australia (FCFCOA) has created several special lists to meet the core principles of the court to prioritise the safety of children, vulnerable parties and provide efficient and effective resources and case management. The specialist lists now available include:

• An Indigenous list to provide an appropriate pathway to deal with family law matters involving parties who identify as Aboriginal or Torres Strait Island;
• A National Contravention List to manage breaches of court orders in a quick, safe and cost-effective way;
• A National COVID-10 List to deal with urgent family law disputes arising as a direct result of the global pandemic; and
• The Evatt List – a specialist court list which allocates highly qualified Registrars, Court Child Experts to consult with Judges in management of eligible “high risk” cases who have completed the Family DOORS Triage risk screening process. These cases receive more intensive case management and resources.