Key Points
- Under Australian Family Law the interests of the child are paramount
- Most parents reach an informal parenting arrangement
- When parents are not able to agree they can attend mediation
- Family Court is always the last option, but resources are available to guide you through the process
The Family Law Act applies equally to married, de facto, or same-sex parents, as well as carers such as grandparents.
It ensures that children have the right to maintain meaningful relationships with both parents, without making any assumptions about gender or parenting roles within a family.
This means that after a separation, neither parent is automatically entitled to care for a child by themselves, or to make decisions for the other parent.
Bernadette Grandinetti is the Acting Program Manager at Victoria Legal Aid. She says under the Family Law Act there is the presumption of equal shared parental responsibility.
The starting point for considering parental responsibility – which is the making of major long-term decisions about children – is for equal shared parental responsibility, where it’s shared between the parents.Bernadette Grandinetti, Acting Program Manager, Victoria Legal Aid
Only the courts can prevent a parent from seeing their children, such as in cases of family violence.
Equal shared responsibility does not mean that a child must spend equal time with each parent. Together parents can determine what arrangement is most appropriate.
Both parents are required to support the child financially regardless of who they live with.
Equal shared parental responsibility means both parents must support the child financially. Credit: PeopleImages/Getty Images
Parenting plans
Many parents who separate are able to make informal, verbal parenting arrangements between themselves.
Parents may also choose to write and sign an agreement that becomes a ‘parenting plan’.
Parenting plans are not legally binding. They aim to reduce conflict following separation, when parents may be miscommunicating. Plans might include ongoing financial arrangements, and an agreement about living arrangements.
“For example, the children live with mum on these days and dad on these days,” according to Shireen Faghani a Senior Solicitor with Women’s Legal Service in the ACT.
“You might have some guidelines about how you’ll communicate with each other as parents.”
Parenting plans are flexible and can be modified as your child’s needs change.
If you reach an agreement and decide to make it legally binding, you can apply online to the Federal Circuit and Family Court of Australia for what is called a .
Little girl feeling sad while her parents are arguing in the background. Credit: skynesher/Getty Images
Family dispute resolution
Where parents are not able to reach agreement then mediation, or family dispute resolution, is usually the next step.
in each state and territory offer legally assisted mediation for people eligible for financial aid. Community-based and private mediation services are also available.
The Family Court offers to help parents reach an agreement and avoid court. You can also use Legal Aid services and resources such as .
Most separating parents manage to make parental agreements without going to court.
“Agreements negotiated between parents are known to be more effective in reducing conflict and creating certainty for children,” according to Senior Judicial Registrar Anne-Marie Rice from the Federal Circuit and Family Court of Australia.
L'aumento del costo della vita sta avendo ripercussioni su migliaia di famiglie in Australia. Source: Moment RF / LOUISE BEAUMONT/Getty Images
A list of FDRPs is available on the website, including their locations and fees. Private mediators also offer this service, usually at a higher fee.
You don’t need a lawyer to attend Family Dispute Resolution. FDRPs ensure that negotiations are safe, and will discuss any concerns or risks with you privately before any negotiations – including any domestic and family violence. You can also request a translator.
If you receive an invitation from the other parent to attend FDR, consider it carefully and seek legal advice if you have questions.
If you choose not to attend, a decision may be reached without your input.
Family Court
Even if you do go to court because you haven’t reached an agreement, the chances of ending up in a trial before a judge are very low, Registrar Rice explains.
The court will help you find ways to safely negotiate an agreement that works for you and your children.Senior Judicial Registrar Anne-Marie Rice, Federal Circuit and Family Court of Australia.
The Federal Circuit and Family Court of Australia has an obligation to help parents resolve disputes as efficiently as possible. Even so, court is never the preferred option.
“I think everyone who works in the family law system will say the court is a place of last resort ... Anyone who wants to apply to the court for a formal order about a child must – except in cases of urgency and high risk – first try to reach an agreement with the other parent,” Registrar Rice says.
“That means that they must attend mediation with a registered FDRP, and the family must obtain a certificate to confirm that no agreement was able to be reached.”
A court order is a formal, written document that sets out what parents must do in relation to the children, or the financial affairs. Orders can be made by consent between the parents or by a Registrar or Judge after a hearing. They are legally binding and are in effect until the child turns 18.
The Court takes orders very seriously and breaching an order can have significant consequences.
When planning to move overseas or interstate with your child, consent from the other parent is required unless you are seeking a court order. Credit: MoMo Productions/Getty Images
Relocating with your child
Moving overseas or interstate with your child requires consent from the other parent unless you have a court order.
“This is when you should speak with a lawyer,” Shireen Faghani emphasises. “The court will consider things like safety concerns, whether the relocation means they’ll be closer to family and support or financial considerations.”
Legal advice
The system can be quite daunting but support is available to help you navigate it, Bernadette Grandinetti says.
“If you’ve separated and you’re not sure what to do or you feel pressured to agree to parenting arrangements, you should seek legal advice before agreeing, especially if you’re experiencing family violence.”
