Child Custody

At law, both parents have parental responsibility of their child until the child reaches 18 years of age. This means that both parents can jointly and separately make decisions about the child’s upbringing, including the child’s education, healthcare and religion, among other things. This does not usually change simply because the child’s parents separate or divorce.

That said, when a relationship breaks down, certain decisions must be made in relation who the child will live with, when and how much time the child will spend with the other parent, and how important decisions regarding the child will be made now that the parties have separated.

In some cases, parents are able to reach an agreement as to how much time the child will spend with each parent and how decisions regarding the child will be made. If the parties reach an agreement, a parenting plan should be prepared or consent orders filed in court.

Our family lawyers always recommend the parties find an amicable solution when it comes to the care of children. However, we understand that it is not always possible to reach an agreement with your partner regarding the parenting arrangement for your child. In the absence of an agreement, an application can be made to the Court to determine the parenting arrangements.  However, before the Court makes an order, the parents must participate in compulsory dispute resolution with an accredited family dispute resolution practitioner and obtain a “section 60I certificate”.

If the parties still cannot reach an agreement, the Court will proceed to make a parenting order based on the child’s best interest. In doing so, the Court will consider the need to protect the child from harm and violence, the child’s right to be cared for by both parents and the child’s right to spend time and communicate with both parents.

Some of the matters the Court may make orders about are:

  • how the child is to spend time with each of the parents;
  • whether one or both parents are to be responsible for decisions regarding long term issues concerning the child;
  • where the child is to go to school;
  • whether a child can travel interstate or overseas; or
  • whether to grant relocation for the child.

Any other party that has an interest in the welfare of the child, such as the child’s grandparents, can also apply for a parenting order.

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