The same law applies to children whether the parents are/were married or were in a de facto relationship. In this legal information section we have referred to the “other parent” and to the “father”; the same law also applies to gay and lesbian parents.
Arrangements for the children can be informally agreed between the parents, set out in a written and signed parenting plan or made into court orders. Court orders are often made by consent, reflecting the agreement of the parties. In cases where no agreement can be reached, an application can be made to the court to determine what the parenting orders should be.
The term “custody” is no longer used. Under current law, it is a question of who the child “lives with” and how much time they “spend with” and “communicate with” the other parent.
There is no set age at which a child can choose who they live with, or choose when (or whether) they see the other parent. A child is legally a minor until he/she turns 18.
While a child may express strong views about who they want to live with, those views are just one of a number of factors to be taken into account by the court when deciding who he/she will live with. Any decision concerning a child’s living arrangements, including working out when they see the other parent, must be made in the best interests of the child.
The law does not say that children must spend equal amounts of time with each parent after their parents separate.
The law does say that, where the parents have equal shared parental responsibility (see below), the parents (and the court) must consider whether an arrangement where the child spends equal time with each parent is:
(a) in that child’s best interests and
(b) reasonably practicable.
If the answer is “no” to either (a) or (b) then the court must consider whether the child should live with one parent and spend “substantial and significant” time with the other parent. Again, the parents (and the court) have to consider whether the arrangements are in the child’s best interests and reasonably practicable.
The legal term “parental responsibility” means all the “duties, powers, responsibilities and authority, which parents have in relation to their children.”
Both parents are presumed to have “equal shared parental responsibility” for their children until they turn 18.
In practice, this means that both parents should consult each other about the long term, important decisions that affect their children. These decisions may include where the children will go to school, the religion (if any) that the children will follow, what sort of medical treatment the children will have and which of their extended family they should continue to see etc.
ESPR is not the same as “equal shared care” where the children spend an equal amount of time with each parent.
You do not have rights over your children. You and the other parent have responsibility for the children’s care, welfare and development.
The “primary consideration” or first concern of parents (and the court) is the need to protect children from harm or exposure to family violence.
You need to consider this when making a decision about who the children live with, and spend time with.
If there are no court orders, then the children can either live with you or with the father. It is a question of what is in their best interests. It is not just the father’s decision. If the father does take the children away from you, and you think that this is not the best for the children, you may be able to apply to court for orders that the children live with you, and for a recovery order to have the children returned to your care.
If you already have court orders, which say that the children live with you, then the father cannot take them away from you. If he does so, you should apply to court immediately for a recovery order.
Before he applies to court, you will both have to attend family dispute resolution (mediation) to try to reach agreement about living arrangements for the children. You may attend family dispute resolution at a Family Relationship Centre (FRC) or with any other accredited family dispute resolution practitioner (FDRP/mediator).
If there has been family violence in your relationship, it may not be appropriate for you to attend family dispute resolution. You may receive a certificate from the FDRP exempting you from attending.
If you are not able to reach agreement with the help of a FDRP, or you were exempted from attending because of family violence, then the father may be able to make an application to court. An application to court has to include a certificate from the FDRP, which certifies that you have both attended at family dispute resolution and made a genuine effort to resolve the issues relating to your children or that the matter was not suitable for family dispute resolution.
The court will look at all the evidence from you and the father and decide what living arrangements will be the best for your children, and how much time they will spend with the other parent.
Moving interstate, overseas or a significant distance from where you live now, is known as “relocation”. You must have the consent of the other parent to relocate with the children, or a court order which allows you to relocate with the children.
If you relocate without the permission of the other parent, they may apply to court for an order to bring you back to where you were living before. This can be very disruptive for the children, and may not be good for your case in the long term.
If the other parent does not agree to you relocating, and you have a good case for moving, you may be able to apply to court for an order that the children live with you and which permits you to relocate. You will have to attend family dispute resolution with the other parent first.
If there is no court order which says that your children must spend time with their father, then you don’t have to make them go.
However, the law says that children have a right to have a meaningful relationship with both parents (unless there has been abuse or family violence), and the law expects you to encourage and enable your children’s relationship with the other parent.
If there is a court order which provides for your children to spend time with their father, you may be in breach of that order if you do not make them go. You may have to try to renegotiate the arrangements with the other parent or vary the terms of the court order.
Yes. If you are thinking of moving out of the house, you should plan to take the children with you. You can work out arrangements for the children to spend time with the other parent once you have moved, if this is in their best interests.
No. If you think your children are at risk in the father’s care, then you do not have to send them to spend time with their father. If there is a court order setting out the details of the time your children spend with their father, then you may be in breach of those orders if you don’t send your children. The possible consequences of breaching orders are discussed below. You may need to apply to court to vary those orders.
What if I breach the court orders?
The father may make an application to the court. The court will require you to comply with court orders unless there is a reasonable excuse for you not doing so (for example, to ensure the safety of your child). If the court finds that you have breached or contravened an order without a reasonable excuse, it may require you to:
Penalties are usually only imposed where there have been repeated breaches of orders. The court may also vary the existing parenting order.
Violence directed towards you by the father is also abuse of the children. The law says that children should be protected from physical or psychological harm, which results from being subjected to, or exposed to, family violence.
It may not be in the best interests of your children to spend time with their father.
However, a court may still decide that it is in the best interests of the children to spend time with their father, in spite of his previous violence towards you. This time might need to be supervised by another person. Each case is different and will depend on the facts.
A parenting plan is a written agreement between you and the other parent, which deals with issues such as who the children are going to live with, how much time they will spend with the other parent and how/when they will communicate with the other parent. It has to be dated and signed by both parents.
A parenting plan is not enforceable like a court order. It is an agreement between the two of you, setting out your future plans for the children. If one parent does not keep to the terms of the agreement, you may have to try to renegotiate it or make an application to court for court orders.
If one of you makes an application to court at a later date, the court may take into account the agreement set out in the parenting plan. The court can make orders in the same terms, or change that agreement, depending on what is in the best interests of the children.
A parenting plan may be used to change the terms of an existing court order. You should be very careful that the terms of any such parenting plan are in the best interests of the children, and workable.
It may be a good idea to make a parenting plan for a limited time period, e.g. 12 months, as the children’s needs are likely to change as they get older.
Consent orders are formal court orders that reflect the agreement you have reached with the other parent. Consent orders are enforceable like any other court orders. You can use this kit on the family law courts website to apply for consent orders.
You can also get a copy of this Kit from the Family Court registry at the Owen Dixon Commonwealth Law Courts Building, 305 William Street, Melbourne VIC 3000 or by writing to the Registrar, Family Court of Australia, GPO Box 9991 Melbourne 3001 and asking for the Consent Orders Kit and supplement.
If your court orders are not working, and the other parent agrees to change them, you can create a parenting plan together (see above) to set out in writing what you want the new arrangements to be. The parenting plan must be dated and signed by both parents. This has the effect of changing your court orders.
You can also ask the court to make consent orders that change the court orders.
If your court orders were made recently (in the last couple of years), and the other parent does not agree to change them, then you can only change the orders if there has been a “significant change in circumstances” since the orders were made. This has to be done through the same court that made the orders.
If your court orders were made some time ago, you may be able to change them. First, you will have to try to renegotiate the terms of the orders with the other parent. This can be done privately between the two of you, or through family dispute resolution. If you reach agreement, you can make a parenting plan (see above), which can change the terms of your existing court orders.
If you do not reach agreement with the other parent about changing your existing orders, you may be able to apply to court to “vary” the orders. You will need to show the court that it is in the best interests of your children to change (“vary”) the orders.
Just as parents do not have rights over children, grandparents also do not. However, grandparents often play an important role in the lives of children, particularly when the children’s parents are separating.
Grandparents are able to apply to court for orders in relation to their grandchildren. They can apply for orders that the grandchildren spend time with them and communicate with them, and in some cases for orders that the children live with them. It is a question of what is in the best interests of the children.
Before making an application to court, grandparents must try to reach agreement with the children’s parents through family dispute resolution.
No. Children have different needs from each other, often depending on their age. For example, a 5 year old might happily spend time overnight with his father, while his 1 year old brother might not be old enough to spend that amount of time away from you. You have to try to consider what is best for each child at the present time.
Every case is different. The court will usually make orders that keep all the children living with the same parent, although the court can make an order to split siblings if this is considered to be in their best interests.
In most cases the parent who is caring for the children at the time decides which other people the children will spend time with.
However, the children may want to spend time alone with their father, particularly if they are living most of the time with you.
It may be best for a new partner to be introduced to the children gradually, and it may take a while for them to get to know her. If she is a permanent part of the father’s life, they will get to know her as time goes on.
No. If a father decides not to continue spending time with the children, there is little you can do to make him do so.
If possible, you need to talk to the father about why he keeps breaching the orders. It may depend on how he is breaching the orders. For example, he may be bringing the children back consistently late because he has no car and public transport is making him late. In this type of case you could agree to change the time that he brings them back, so that they get back home to you at a reasonable time.
If discussions with the father don’t help, or don’t take place, then you may be able to start “contravention” proceedings in the court where your orders were made. This brings your matter back to court. You have the opportunity to tell the court about the father’s breaches of the current orders. The court can vary the orders, and order the father to do certain things, such as attend a parenting course and give you make-up time if you have missed time with your children. The court may also order the father to pay a fine.