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Children and Parenting

If you have separated, or are considering separating, from your partner and you have children together, it is vital to ensure they are well cared for. You can work through parenting and children issues with your ex-partner and formalise those arrangements with an experienced family lawyer, or you can seek help from family law professionals if you can’t agree. Honan Family Law is a team of experienced family lawyers who are empathetic during this difficult time for your family. We use a no-nonsense approach to ensure you are aware of your options and make sure your story is heard and advocated for strongly.

The Family Law Act has had a number of changes since it was enacted in 1975 with respect to the terms used regarding children. Prior to 1996 the terms used were “guardianship, custody and access”. Following 1996 the terms used were “residence, contact and specific issues”. All of these terms were replaced with the changes to the Family Law Act that commenced on 1 July, 2006.

The most recent changes to how the Family Law Act determines parenting matters took effect on 6 May 2024.

What are the most recent changes to the Family Law Act?

Before the changes to the Family Law Act, unless a parent has engaged in family violence or child abuse, there is a presumption that it is in the child(ren)’s best interest that the parents have equal shared parental responsibility for the child(ren).

If the presumption of equal shared parental responsibility applies, the Court is then required to consider if it is reasonably practical and in the child(ren)’s best interest for, firstly, an equal time arrangement or, secondly, a substantial and significant time arrangement to be ordered.

The amendments that commenced from 6 May 2024:

  1. removed the presumption of equal shared parental responsibility being in the child(ren)’s best interest (section 61C of the Family Law Act 1975); and
  2. removed the requirement for the Court to consider whether an equal time arrangement and a substantial and significant time arrangement are appropriate (section 65DAA of the Family Law Act 1975).

The effect of these amendments is that there is no longer a “starting point” for what care arrangements will be in the child(ren)’s best interests. The amendments provide that a decision in relation to child(ren)’s care arrangements will be made having regard simply to what is in the best interests of the child(ren).

Child Support arrangements are not included as part of the parenting arrangements.

The process of determining custody arrangements in the event of parent separation can be difficult and emotionally taxing. Honan Family Law will advise you as to what legal rights you have and where necessary, take steps to protect your legal position.


Everything you need to know about children and parenting

Previously when determining what is in a child’s best interest, the court was to consider two primary factors and thirteen additional factors found at section 60CC of the Family Law Act 1975. When making parenting orders, these factors are in addition to the presumption regarding shared parental responsibility and considerations of equal, or substantial and significant time arrangements.

From 6 May 2024, 60CC was simplified so that the considerations for a child’s ‘best interests’ went from fifteen factors to six factors for all children plus an additional factor for Aboriginal and Torres Strait Islander children.

The six factors include:

  • What arrangements promote the safety of the child and the child’s carers, including safety from family violence, abuse, neglect or other harm.
    The child’s safety includes safety from being subjected to or exposed to family violence, abuse, neglect or other harm.
    In considering this factor, the Court is required to consider any history of family violence, abuse or neglect involving the child or a person caring for the child, and any family violence order that applies or has applied to the child or a member of the child’s family.
  • Any views expressed by the child.
  • The developmental, psychological and emotional needs of the child.
  • The capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological and emotional needs.
  • The benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so.
  • Anything else that is relevant to the particular circumstances of the child.

These considerations, although more concise, overlapped with many of the previous considerations.

For parenting matters, there are three options available to reflect your agreement. They are either an informal agreement, a Parenting Plan or a Parenting Consent Order.

Informal Agreement

This can be a verbal agreement or a written agreement that isn’t signed by either parent. An informal agreement is not enforceable if a parent does not follow it.

Parenting Plan

A Parenting Plan is an informal agreement between parents that is not approved by a Court and is not legally enforceable. Whilst there is no penalty for breaching the Parenting Plan, they may be appropriate where parents get along well and want flexibility instead of a binding court order.

Parenting Plans can include a wide range of issues regarding a child’s day-to-day and long term care, such as:

  • Where and with whom a child will live.
  • With whom the child will spend time.
  • With whom the child will communicate and how.
  • Where a child will go to school.
  • The allocation of parental responsibility (e.g. school, religion).
  • The form of consultation parents will have with each other regarding decisions to be made concerning a child’s care, welfare and development.
  • The process of dispute resolution between parents and of varying a Parenting Plan, if and when necessary.
  • Issues regarding Child Support.
Consent Order

A Consent Order is a written agreement that is approved by a Court. The relevant agreement is drafted in legal terms and signed by the parties. It is accompanied by an Application for Consent Orders which will include details about the parties and each of the children. This is as the Court will only make the proposed orders into an order of the court once it is satisfied that the orders will be in the “child’s best interest”.

Once the order is issued from the Court, the orders will be a legally binding agreement and the court can impose penalties if one or both of the parties refuse to follow the Orders. A Court can only penalise a party for breaching an order if a Contravention Application is filed.

If you and your ex-partner cannot agree to the parenting arrangements, then an application can be made to the Court for parenting orders. Parents are however required to make a genuine effort to resolve their dispute by family dispute resolution, before they make a parenting application in the Federal Circuit and Family Court of Australia.

Parties are required to have attended upon, and obtained a certificate (Section 60I) from, a Family Dispute Resolution Practitioner, before they can file an application. There are limited exceptions to the requirement to attend family dispute resolution, which include:

  • Where the application is urgent; or
  • One or more of the parties is unable to participate effectively in family dispute resolution.

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