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Family Law: Children

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Children are at the heart of Family Law and at the heart of any parent’s life. Parenting after separation can be hard work and it will often take time for both parents and children to adjust post separation. Aston Legal Group represents and advises parents, both heterosexual and same-sex, as well as grandparents and other significant relatives who are seeking parenting arrangements. Every situation is different and unique, just as every child is. We understand that parents need certainty about the issues relevant to their children’s future. We work closely with a range of specialised psychologists, therapeutic counsellors and dispute resolution practitioners to resolve parenting matters.

helping you Resolve Family Law Issues

Children

Family Law Parenting Matter

Relocation of Children

The law relating to relocation of children post separation is one of the most complex matters the Family Court needs to decide on. The Family Law Act does not set out specific provisions which are applicable to relocation matters. It will mainly depend on each party’s own set of unique facts and circumstances. Where one parent intends to relocate to another state or country and this will affect the arranged time for the children to live with or spend time with that parent, the consent of the other parent is required. In the absence of consent, an application to the Family Court of Australia may be required. The court will have regard to the best interests of the children as the paramount consideration when deciding on the application. Our lawyers at Aston Legal Group are experienced in all aspects of family law matters and representing you in Court should this be required. 

Arrangements for Children after separation

Our lawyers at Aston Legal Group can assist you to come up with a parenting agreement post separation. If you and your former partner have agreed on who the children will live with and how much time they will spend with each parent, you may consider entering a Parenting Plan. Although a Parenting Plan is not legally enforceable, it can be finalised by way of Consent Orders filed with the Court. If you and your farmer partner are unable to reach an agreement, you may need to initiate legal proceedings at the Family Court or Federal Circuit Court. One of the advantages of reaching a parenting agreement between yourself and your former partner is that you will have the flexibility to tailor the arrangement to best suit your needs and those of your children. If the matter requires the Court’s assistance to achieve a resolution, the Court will start by considering whether the children ought to spend equal time with both parents. Where this is not practicable, the Court will consider whether the children ought to spend ‘substantial and significant’ time with each parent. The Court will take into consideration factors such as distance between the parents’ residences, each parent’s capacity to implement the arrangement and any impact on the children.

important things you should know

Questions And Answers

When making decisions about which parent will care for the children after separation, parents are always encouraged to regard the children’s best interests as the paramount consideration. It is usually considered that it is in a child’s best interest to have a relationship with both of their parents. If you and your former partner agree on who the children will live with and how much time they will spend with the other parent post separation, you can enter a Parenting Plan and avoid the need to go to Court. A Parenting Plan is not legally enforceable but can be finalised by way of Consent Orders filed with the Court, in which case the arrangement becomes legally enforceable. If you and your former partner cannot reach an agreement over parenting arrangements for your children, you may need to commence proceedings in the Family Court or Federal Circuit Court. This can only be done after you and your former partner have made a genuine effort to resolve the dispute through Family Dispute Resolution, if appropriate to do so.

It is important to remember that parental responsibility is not altered by the breakdown of the relationship between two parents. Both parents will continue to have what is known as ‘equal shared parental responsibility’ for their children under 18 years of age unless the Court says otherwise. At law, ‘parental responsibility’ refers to the legal obligations and duties which parents have for the care, welfare and development of their children. This includes, but is not limited to, the children’s education, health, religion and living arrangements. ‘Equal shared parental responsibility’ does not mean that both parents will have equal time with the children but it does mean that they are required to consult each other and make joint decisions about major long-term issues regarding the children. It is not always easy for parents to share parental responsibility and to co-parent effectively after separation. There are circumstances where it may become necessary for one parent to make an application to the Court for sole parental responsibility, for example, where there is family violence, abuse or a high-level of conflict between parents. Our lawyers at Aston Legal Group understand this and can assist you to navigate shared parental responsibility post separation or advise you on sole parental responsibility in certain circumstances.

Where one parent wishes to relocate either with their children or away from their children post separation, potential relocation could make it difficult to maintain the children’s time with each parent. Parents should try to make a genuine effort to resolve the issue amicably between themselves wherever possible. If parents cannot resolve the issue of relocation between themselves, a parent may need to make an application to the Court to either get permission to relocate with the children or to prevent the other parent from relocating with the children. The Court will consider the best interests and welfare of the children before making a decision. The most effective way to ensure that the other parent of your children does not attempt to relocate with your children is to make sure there are parenting orders in place which address the issue.

If you and your former partner can come to a parenting agreement between yourselves post separation, you will have the flexibility to tailor the arrangement to best suit your needs and those of your children. If the Court is required to intervene and determine parenting disputes, it will start by considering whether children ought to spend equal time with both parents. Where this is not practicable, the Court will then consider whether the children ought to spend ‘substantial and significant’ time with each parent. ‘Substantial and significant’ time with each parent includes weekdays, weekend days, holiday time and special occasions.  When determining whether equal time or substantial and significant time with each parent is practicable, the Court will consider factors such as how far apart the parents live from each other, each parent’s capacity to implement the arrangement and the impact of any such arrangement on the children.

Wherever the Court is required to intervene in parenting disputes, its primary focus is the ‘best interests’ of the children which is determined by considering the benefit to the children of having a meaningful relationship with both parents, subject to the need to protect the children from physical or psychological harm. It is generally in the best interests of the children to have a relationship with and spend time with both parents, save for extreme circumstances of physical, sexual or psychological harm or abuse. Other factors taken into account when determining the best interests of the children include the children’s relationship with each parent and any extended family members, the willingness of each parent to facilitate the children’s relationship with the other parent, the likely effect that a change of circumstances will have on the children and in certain cases, the children’s own personal views.

“Liberty is the right to do what the law permits.”

Montesquieu

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Issues that may arise in family law

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