Legal MattersNews

What happens to the children?

Sarah of Chippendale asks: “My partner and I have separated. I have taken the children and want them to stay with me. How can I formalise this arrangement? What rights do I have?”

The question that Sarah asks is all too typical. However, there is no easy answer, especially if the two parents cannot agree between themselves on the living and other arrangements for their children, post separation.

The first thing to note, which may be a surprise to all parents is that, when it comes to issues regarding children, the law does not give parents rights – it gives them responsibilities. The view framed in the Family Law Act 1975 is “What is in the best interests of the child?”

The first step – Family dispute resolution

In most instances, except in urgent cases (e.g., where a child is being taken out of state or country) or where there is domestic violence involved, the courts insist that family dispute resolution (FDR), a form of mediation, occur before you can start court proceedings in relation to children.

The concept is that parents work out arrangements between them via FDR.

What sort of agreements can you make?

There are two types of agreements reached via FDR:

  1. Parents can draw up an informal “Parenting Plan”. This puts in place agreements reached about the children and can cover everything from place of abode to education, health issues and even the type of clothes a child is to wear at a certain time.
    Parenting plans must be in writing, signed and dated. They create no legal obligations on either parent. However, the Court can consider what has been agreed in a parenting plan if those involved have later court proceedings dealing with parenting issues.
    The downside is that these agreements depend on the good will of the parties – neither parent can make the other stick to an informal agreement.
  2. If you want a formal agreement that can be legally enforced and is binding, you may want to consider “Consent Orders”. They can be made after negotiating with the other parent, usually with the help of a lawyer or dispute resolution service. A consent order is filed at, and approved by, the Courts.

It will often be important to get some legal advice, because the agreements you make about where children live and where they spend their time can also affect your property matters and child support.

What if you can’t agree at FDR? Going to Court

Courts usually require a certificate from an FDR practitioner before a case about children can go ahead for the court to decide and issue orders. If you decide to take the matter before the Family Courts, the Courts will decide the parenting orders on the basis of the best interests of that child.

The primary considerations re best interests are: The benefit to the child of having a meaningful relationship with both of the child’s parents; and the need to protect the child from physical or psychological harm, and from being subjected to, or exposed to, abuse, neglect or family violence.

The court may also consider: views expressed by the child, taking into account the child’s maturity; the child’s relationship with each parent and other important persons (e.g., grandparents, siblings); the effect on the child of any change in arrangements, including separating siblings from each other; the capacity of each parent to provide for the needs of the child; and the willingness and ability of a child’s parents to encourage a close and continuing relationship with the other parent.

The parenting order that the Court makes will cover issues such as: who a child will live with; what time a child will spend with a parent or other persons important to the child; how parental responsibility will be shared; how parents will communicate about a child; and how any disputes about what is set out in the orders will be resolved.


The keys to bringing about a swift answer are for both parents to act in the best interests of the children and to emphasise communication and resolution in all their negotiations.

Mark Hanna is the Principal of Mark Hanna Lawyers
If you have questions about law, you can contact him at 0421 272 921.

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