Laws Governing Children

Both parents have full responsibility for each of their children under eighteen years of age. This responsibility is only affected when the parents separate or re-marry.

If there is conflict between the parents on matters such as where the children will live and with whom the children will spend time, then the court (usually the Federal Magistrates' Court) will make orders altering both parents' responsibilities. The court's main focus will be the best interests of the children, and it is important to understand that the parents' preferred result will not take precedence over the children’s needs. Furthermore, once you start court proceedings you are in an “adversarial environment”, which means one person is against the other, and both parties are asking a third party to decide what is in the best interests of their children. This is why our clients are almost always better off if they can negotiate a parenting plan, rather than litigating. The court will encourage both parties to do this. Going to trial can be expensive and stressful but sometimes it is the only option.

The orders made by the court, whether by consent or after litigating, are called parenting orders. There are four types of parenting orders:

  • “Living with” orders- previously known as 'custody' or 'residence' orders, stating who the children will live with
  • “Spending time with” orders- previously known as "access' or 'contact' orders, setting out periods of time spent by the children with the nonresident parent
  • "Child maintenance" orders - dealing with support for the child
  • "Specific issues" orders - covering any other aspect of parenting responsibilities

Often such orders are made on an interim basis only. Parents will need to apply to the court for new orders as the children grow older, to meet changes in their circumstances.

The court can also appoint an independent lawyer to represent your children in the process, and it can order a child psychologist to prepare a "family report", looking at the relationships within the family and making recommendations regarding future care arrangements.

Unlike any other area of the law, children's matters are fraught with emotion, and good, objective decision-making is very difficult for parents in such circumstances. This is why you are strongly advised to obtain expert legal advice about your situation. The family law team at Maddens Lawyers have extensive experience in this area.

 

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