Skip to Children’s Matters | Parenting Disputes | Shared Care Arrangements | Parental Responsibility | Custody and Access | Paternity and DNA Testing | Family Violence | Apprehended Violence Orders and ASharedpprehended (Domestic) Violence Orders | Care Proceedings involving the Department of Community Services (DOCS) | Contravention Applications and Enforcement of Court Orders | Relocation Applications | Child Abduction and Hague Convention Applications | Child Recovery

Children’s Matters

Each parent has full parental responsibility for their children until they reach 18, unless a Court orders otherwise. This does not change simply because you separate or remarry. When parties who have children under 18 separate it is important that the parties are able to remain focused on the best interests of each child in considering what arrangements are to be made for their ongoing welfare, care and development. By doing so you will spend less money, time and energy, but most importantly it will be easier on your children. We are able to help you keep that focus to achieve the right result for your family sooner.

The Family Law Act sets out a number of important principles in relation to children:

• Children have the right to know and be cared for by both their parents;
• Children have a right to spend time, and communicate, on a regular basis with both their parents and other people who are significant to them;
• Parents jointly share duties and responsibilities regarding their children;
• Parents should agree about the future parenting of their children;
• Children have a right to enjoy their culture; and
• When the court is asked to make decisions about children, it must regard the best interests of the child as being the paramount consideration.

Agreements once reached can be made informally or registered with the Family Court. If you cannot agree you can apply to the Family Court or the Federal Magistrates Court to make orders concerning your children. The Family Court can make orders governing:

• who children live with
• who they spend time with
• how much time they spend with parents, grandparents or other interested parties
• who is to have parental responsibility
• any other aspect of children’s welfare, care and development

Before making an application to Court (other than in exceptional circumstances, such as where there is family violence or urgency) parties are obliged to make a genuine effort to resolve matters by agreement. The Family Court has set out the steps which parties are to take to attempt to resolve matters by agreement which are known as pre-action procedures. In most cases this involves obtaining a certificate from a family dispute resolution practitioner certifying that a genuine effort has been made to resolve the parenting matter.

The Court process is heavily geared towards involving the parties in reaching an outcome for all children’s matters. The Court facilitates mediation with the assistance of the parties’ lawyers and input from a Mediator or Registrar. We can assist you to reach agreement by advising you as to the likely outcome which can be achieved through litigation, by assisting in the conduct of negotiations and by bringing our experience of the thousands of matters in which we have acted in drafting children’s orders.

Amendments to the Family Law Act in 2006 provide that the Court must consider an equal or shared parenting arrangement being put in place. We have experience in distinguishing when the circumstances arise where it is appropriate to do so and mounting your best case either for or against your children spending equal time with each parent.

Our large team of Family lawyers including male and female Accredited Specialists in Family Law bring our combined experience of over 50 years including acting for parents, grandparents and acting in the role of Independent Children’s Lawyer before the Family Court of Australia to benefit you in achieving the best possible outcome.

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Parenting Disputes

When relationships break down and children are involved it is almost inevitable that each party will have differing views on what is best for the children. Disputes between parents, even if they don’t occur in the presence or hearing of the children can impact on a child’s well being, their sense of security and their long term development.

Often times there is an imbalance of power between parties, whether because of one party having a greater share of financial resources, one party having greater time with the children, or because of a history of violence or intimidation in the relationship. Legal representation can assist to remove that inequality and prevent the baggage from a broken relationship from impacting on a resolution of parenting disputes.

Our large team of Family lawyers including male and female Accredited Specialists in Family Law can:

• Refer you to a suitable counsellor or mediator to resolve your parenting disputes
• Advise you early on the range of orders which might be appropriate to your circumstances
• Prepare you for mediation by arming you with a proposal tailored to the needs of your children and the circumstances of your family
• Represent you in negotiations to avoid the necessity for court proceedings
• Represent you in Court to put your case forward in mediation and before a Judge or Federal Magistrate

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Shared Care Arrangements

The Family Court applies a presumption that it is in the best interests of a child for the child’s parents to have equal shared parental responsibility for the child. That means that each parent should equally be able to exercise all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.

The presumption does not apply if there is reasonable grounds to believe that a parent of the child or a person who lives with a parent of the child, has engaged in child abuse or family violence. This presumption can also be rebutted if it is shown that it is not in the child’s best interests.

This presumption does not provide for a presumption about the time a child spends with each of the parents, however where there is equal shared parental responsibility the Court must consider whether the child spending equal time with each of the parents would be in the best interests of the child and if it is reasonably practicable the court must consider making such an order.

Where the Court does not make such an order the Court must then consider whether the child’s best interests would be served by the child spending substantial and significant time with each parent, again giving consideration to whether it is reasonably practical. Substantial and significant time means time that is part of the child’s daily routine and days of significance to the child as well as weekend and holiday time.

In determining what is reasonably practical the Court has regard to how far apart the parents live, their capacity to implement an arrangement now and into the future, their capacity to communicate with each other and resolve difficulties and the impact that such an arrangement would have on the child as well as other relevant factors.

Our experience in obtaining orders for shared care and in defending applications for shared care will benefit you understanding how these principles apply to your circumstances and preparing you for negotiations, mediation or litigation.

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Parental Responsibility

Parental responsibility refers to the duties, powers, responsibilities and authority which, by law, parents have in relation to children. In the absence of a court order a child’s parents each have full parental responsibility for their children. In some circumstances the Court can order that parental responsibility vest in another party, or be removed from one or both parents.

The Family Court applies a presumption that it is in the best interests of a child for the child’s parents to have equal shared parental responsibility for the child. That means that each parent should equally be able to exercise all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.

The presumption does not apply if there is reasonable grounds to believe that a parent of the child or a person who lives with a parent of the child, has engaged in child abuse or family violence. This presumption can also be rebutted if it is shown that it is not in the child’s best interests.

Equal shared parental responsibility does not necessarily mean equal time with children although the two factors are related. See our section on shared care arrangements for more information.

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Custody and Access

The terms “custody” and “access” are no longer used by the Family Court in Australia as they were considered to place the emphasis on parents and not on children, i.e. one of the parents having custody of their child and one parent having access to their child. Instead the Court prefers terms that are more child focused, and so presently the Court refers to where a child predominantly resides or lives and who a child has contact or spends time with. For that reason these type of parenting orders are some times referred to as “residence” or “lives with” and “contact” or “spends time with” orders.

Leaving the language aside the Court focus remains on determining what is in the best interests of a child or children.

The Court aims to do this by:

1. ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
2. protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
3. ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
4. ensuring that parents fulfill their duties, and meet their responsibilities, concerning the care, welfare and development of their children

The Court upholds the following principles unless it would be contrary to a child’s best interests:

1. children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
2. children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
3. parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
4. parents should agree about the future parenting of their children; and
5. children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

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Paternity and DNA Testing

Proof of paternity refers to the legal determination of who is the father of a child. The law automatically says there is ‘proof of paternity’ of you being the father of a child where:

• you were married to the child’s mother at the time she became pregnant;
• you are named as the father on the birth certificate;
• you have signed a statutory declaration saying you are the father of the child;
• you and the mother were in a de facto relationship at the time she became pregnant; or
• there is a court order saying you are the father of the child.

If there is no proof of paternity DNA testing is the best way to obtain this evidence. If there is proof of paternity, but either party believe the man is not or may not be the father of the child DNA testing can be undertaken to make sure.

DNA testing is a scientific test that is able to tell if a man is the father of a child by comparing a DNA sample from the man, woman and child. Most commonly the sample is taken by a mouth swab from the inside of the cheek and then tested to show with 99.9% accuracy whether the man is the father of the child. If being used for the purpose of Court proceedings or Child Support it is important that the DNA tester who is used is one whose results will be accepted by the Family Court.

Either the man or the woman may apply to the Family Court for DNA testing to be ordered. The Family Court will consider when the woman became pregnant, any other sexual relationships the woman may have been involved in at the time and other relevant information. The Family Court cannot force a person to give a sample for DNA testing, however, if the court orders the testing and a person refuses to cooperate, the court can infer that the person is the child’s parent and make an order accordingly.

In certain circumstances a man is assessed to pay child support for a child who is not his biological child. Where this occurs you are able to apply to the Family Court for a stay of the Child Support Order pending paternity testing being undertaken. If the results are negative the court will make a declaration that there is no entitlement to child support and the court mayorder that the woman pay the legal costs (eg lawyers’ fees) and DNA testing costs of the man. If a stay is not obtained the Court will not always order that Child Support paid to the child’s mother is to be repaid to the man and so urgency in making an application is advised.

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Family Violence

Family violence is conduct by a person that causes another to fear for their personal well being or safety. It can be actual or merely threatened. It can be to a person or property, or their family.

Moreover it covers a wide range of controlling behaviours. Most commonly these behaviours are of a physical, sexual, and/or psychological nature, and typically involve fear, harm, intimidation and emotional deprivation.

Family violence may include verbal abuse, threats, harassment, intimidation and controlling behaviours, such as limiting access to friends, relatives, finances etc. Family violence can arise in the form of violence between adult partners, abuse or neglect of children by an adult, violence by a child against their parent or violence between siblings. Family violence affects children whether it is directed at the children or directed at other members of their family and witnessed by the children.

There is a myriad of legal protection on offer to victims of family violence, including:

• Apprehended Violence Orders and Apprehended (Domestic) Violence Orders
• Exclusive residence orders or injunctive orders preventing contact between parties
• Supervised time with children by independent parties or by a contact centre
• Shuttle mediations to enable parties to mediate without coming face to face
• Deployment of security officers to be present at Family Court attendances

The Court is obliged to protect children from the consequences of family violence and must ensure when making orders concerning children that they have regard to any family violence order made and do not expose a person to an unacceptable risk of family violence.

The Court may make family violence orders which allow parties to come into contact with each other only for:

• Transfer of a child spending time with a parent or other person as provided by the Family Law Act, or
• Enabling parties to attend family counselling, dispute resolution, consultant meeting or other court events during family law proceedings.

We can assist you to ensure that any issues of family violence in your circumstances are adequately addressed and where necessary brought to the attention of the Court. In many cases family violence can have significant consequences upon the outcome of parenting matters. In some cases family violence can result in payment of compensation to victims through the Family Court in property matters or result in one party receiving a larger share of assets as a consequence of their contributions being made more arduous as a result of the violence.

In most cases where family violence is or has been present, an inequality of bargaining power between disputing parties can result. Legal representation can assist to remove this inequality and enable a settlement to be reached through negotiation.

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Apprehended Violence Orders and Apprehended (Domestic) Violence Orders

Apprehended Violence Orders (AVOs) are Court Orders made under Part 15A of the Crimes Act 1900. An AVO provides protection against physical assault, non-physical abuse such as harassment or intimidation, damage or threatened damage to property.

When an AVO arises where a domestic relationship exists this is referred to an Apprehended (Domestic) Violence Order. A domestic relationship includes the following:

• a current or former spouse,
• a current or former de facto partner (including a partner of a same sex relationship),
• a person who lives or formerly lived in the same house (excluding a tenant or boarder),
• a person who is or was in an intimate personal relationship with the Offender.

AVOs can also protect people living with the person in need of protection, such as children, parents or a partner.

In some circumstances an AVO can be urgently made by a Magistrate in Court or by telephone. Often this is done where a domestic violence offence or a child abuse offence is either about to be or is likely to be committed or has recently been committed.

AVOs include mandatory orders which prevent the Defendant from harassing, molesting, stalking or intimidating or causing any personal injury to the protected person. Additional terms may also be sought such as restricting the Defendant from approaching the protected person, or from having access to their residence or place of work.

When faced with an application for an AVO a Defendant can consent to the AVO, can consent to an AVO without admission of the facts relied on to support the application, or can defend the application. There are significant consequences of consenting to an AVO including restrictions upon obtaining a firearms licence or a security licence. There may also be significant consequences in terms of family law parenting and even property matters and it is imperative that legal advice is taken before giving consent to an AVO.

Whilst AVOs are registered on police computers, to have an AVO order made against you does not constitute having a criminal record. However a breach of an AVO is a criminal offence and may result in the Defendant being arrested and placed in custody. There may be significant difficulties in obtaining bail for such an offence and being convicted of such an offence of knowingly breaching an Order will result in a term of imprisonment if the breach involved an Act of violence, unless the Magistrate finds reasons why prison should be excluded.

Once in place an AVO can be varied or revoked on application to the Court. Again legal advice should be taken before such an application is made.

Where a Family Court Parenting Order and an AVO are inconsistent the Family Court Order will prevail to the extent of any inconsistency. AVOs can be made in contemplation of Family Court Orders to permit counseling, mediation or effecting the transfer of children between parents.

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Care Proceedings involving the Department of Community Services (DOCS)

A Care Application is an application to the Children’s Court for a Care Order. It is the main way that the Department of Human Services (DoCS) can obtain an order from the Children’s Court to protect the safety, welfare and well-being of a child or young person. DoCS might make a Care Application if it believes:

• That something is wrong in the child’s family that has caused, is causing or might in the future cause some harm to the child, and
• That certain actions are required to prevent the harm and/or to fix it, and
• That the only way to get these actions to take place is to get a Care Order.

Parents, children and young people, and other people who have a significant interest in the welfare of a child or young person cannot make a Care Application unless the Children’s Court has previously made a Care Order about the child or young person. If the Children’s Court has already made a Care Order, then a parent, child or young person or another person with a significant interest in the welfare of a child can file an Application for Variation or Rescission of a Care Order. If you believe that a Care Order is needed but the Children’s Court has not made a Care Order before you must call DoCS and make a report about the child or young person.

The Application filed by DoCS must set out the Care Orders they want the Court to make and the reasons why they believe that the child or young person is in need of care and protection. DoCS must also provide evidence to support why they think the child or young person is in need of care and protection. If you believe that the evidence given by DoCS is incorrect or that the evidence does not prove that the child or young person is in need of care and protection then you can ask the Court to hold a hearing. At the hearing, a Children’s Court Magistrate will consider all of the evidence provided by all of the parties. At the end of the hearing the Magistrate will decide whether DoCS has proven that the child or young person is in need of care and protection.

If the Magistrate decides that the child is in need of care and protection the Magistrate will then move into the “disposition” or “placement” part of the hearing. At this part of the case, the Magistrate makes a decision about what kinds of Care Orders are needed to protect the safety, welfare and well-being of a child or young person. DoCS will usually write a Care Plan, which summarises the child’s needs, the reasons why DoCS made the Care Application and the exact Care Orders that DoCS wants the Court to make. All other parties will have a chance to tell the Court what final Care Orders they want and to give the Court evidence supporting their recommendations.

If everyone agrees on what final Care Orders should be made then final Care Orders can be made by consent. This will be the end of the case. If one or more parties does not agree on what final Care Orders should be made, there will be a hearing. At this hearing the Magistrate will consider all of the evidence provided to the Court by all of the parties. The Magistrate will make a decision about what final Care Orders should be made and the case will then be concluded.

The kinds of Care Orders that the Court can make include:

• An order that the parents of the child or young person, or the child or young person him or herself, give undertakings (promises) to the Court;
• An order that DoCS supervise the care of the child or young person, even though s/he might keep living with his or her parents;
• An order that the child or young person live with one parent instead of the other and/or that only one of the parents should have responsibility for making decisions about the child or young person;
• An order that the child or young person live with someone other than his or her parents (such as with another family member or a family friend) and/or that someone other than the parents should have responsibility for making decisions about the child or young person;
• An order that the child or young person should live in a place arranged by DoCS (such as foster care or a group home) and that the Minister for Community Services should have responsibility for making decisions about the child or young person (this used to be called making a child or young person a “ward”); and/or
• That specify what kind of contact (previously called “access”) a child or young person should have with his or her parents, brothers and sisters, other family members and other people who are important to the child.

A Care Application is a very serious court case. It could result in one or more Care Orders being made, including changing your or another person’s parental responsibility for a child. Whether DoCS has enough evidence to prove that a child or young person is in need of care or protection, whether you should consent to a finding during the establishment phase of the case and/or whether you should consent to the final Care Orders recommended by DoCS are very serious questions. Only you can decide whether you should do this. To help you decide, you should get advice from a lawyer before you make any decisions.

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Contravention Applications and Enforcement of Court Orders

When a parenting order is made, each person affected by the order must do everything that the parenting order says as well as take all reasonable steps to ensure that the order is put into effect. Parents also have an obligation to positively encourage their children to comply with the orders. For example, if an order is made for your child to spend time with the other parent, you have to make sure your child is available to spend time with the other parent and you have to positively encourage the child to go.

A court will only penalise someone for breaching a parenting order if another person files a contravention application alleging the person did not comply with the order. A person contravenes (breaches) an order if he or she:

• intentionally fails to comply with the order, or
• makes no reasonable attempt to comply with the order, or
• intentionally prevents compliance with the order by a person who is bound by it, or
• aids or abets a contravention of the order by a person who is bound by it.

If a court decides a person has contravened a parenting order, it will consider whether the person had a reasonable excuse for breaching the order.

Some examples of reasonable excuses that may satisfy the court include:

• the person did not understand their obligations under the orders, or
• the person reasonably believed that the actions constituting the contravention were necessary to protect the health and safety of a person, including the person who contravened the order or the child, and
• that the time of the contravention was not longer than was necessary to protect the health and safety of the person who contravened the order or the child.

After considering all the facts of the case and applying the law, a court may decide:

• the contravention alleged was not proved, or
• the contravention was proved but there was a reasonable excuse, or
• there was a less serious contravention without a reasonable excuse, or
• there was a more serious contravention without a reasonable excuse.

If a court finds a person has breached a parenting order, without reasonable excuse, it may impose a penalty. The ranges of penalties include:

• the making of an order for the person to attend at a post separation parenting program
• compensation for time lost with a child as a result of the contravention
• requiring the person to enter into a bond
• ordering the person to pay all or some of the legal costs of the other parties
• ordering that the person pay compensation for reasonable expenses lost as a result of the contravention
• requiring the person to participate in community service
• ordering that a fine be paid
• ordering imprisonment.

A court may also make a further order that discharges, varies or suspends the order or renews some or all of an earlier order, or adjourn the case to allow a person to apply for a further order that alters the parenting order. If you are the person alleged to have contravened a parenting order and do not attend the court hearing, orders may be made in your absence, including an order for your arrest. It is therefore very important that you seek legal advice if you are served with a contravention application.

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Relocation Applications

Relocation is when a parent wants to move with the children to another suburb, state or country. A Court might not let you relocate with the children if the move results in limiting or reducing the time the children spend with the other parent. When making a decision as to whether you can relocate with the children, the Court must consider the best interests of the child.

If your children primarily live with you and you need to relocate, you should first try to talk to the other party. If an agreement can be reached it is recommended that you apply for consent orders or enter into a parenting plan before you move. A parenting plan is a written agreement that sets out parenting arrangements for children. As it is worked out and agreed jointly, you do not need to go to court. Unless a court orders otherwise, the parenting plan can be changed by the parties agreeing to enter into a new parenting plan. A parenting plan is not a legally enforceable agreement. A consent order is a written agreement that is approved by a court. Consent orders have the same legal force as if they had been made by a judicial officer after a court hearing. Consent orders can be enforced if there has been a breach of an order.

If an agreement cannot be reached, you can apply to the Family Court or the Federal Magistrates Court for a relocation order to allow you and the children to move. If you move without a court order or without the consent of the other party, a court may require you to move back or return the children until it has considered the case. If there is a court order in place, you will be breaching the order and the other parent can apply to enforce the current order.

If the other party wants to take the children away and you do not agree, you can also apply for an order to stop the relocation of the children. If the other party has already moved with the children you can apply to the court for an order that the children be returned until the court has made a final decision about where the children live.

If you are concerned that a child may leave Australia without your consent you can apply to the Court for an order that:

• prevents a passport being issued for a child
• requires a person to deliver a child’s or accompanying adult’s passport to the Court, or
• prevents a child from leaving Australia.
• If you want to move or have concerns that the other party is going to move with the children you should seek legal advice immediately.

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Child Abduction and Hague Convention Applications

If a child has been abducted from Australia without your consent, or has not been returned to Australia, an application can be made under the Hague Convention on the Civil Aspects of International Child Abduction. The Hague Convention is an international treaty that tries to ensure that children who are wrongfully removed or wrongfully retained by a parent, will be returned as quickly as possible to the country in which they habitually reside so that issues of parental responsibility can be resolved by the courts in that country.

Australia is a party to the Hague Convention and is therefore a Convention country. Not all countries are Convention countries. If your child is taken to a country which is not a party to the Hague Convention or a country in a bilateral agreement with Australia, then you may need to commence private legal proceedings in that country.

To ensure that your child can be returned from another Hague Convention Country the following requirements must be met:

• Your child must be under 16 years old;
• You must have “rights of custody” in relation to the child;
• You must have been exercising rights of custody at the time your child was taken from Australia;
• Your child must have been habitually resident in Australia immediately before your child was taken overseas;
• Your child must have been taken to or retained in a country which is a party to the Hague Convention;
• Your child must have been wrongfully removed from Australia or wrongfully retained in another Convention country without your prior consent or without a court order.

If you are worried that your child may be removed from Australia you can obtain a court order prohibiting the removal of the child from Australia. If you have a parenting order from an Australian court, or an order prohibiting the removal of your child from Australia, the Australian Federal Police can put the child’s name on the Airport Watch List. A copy of the original court order must be provided to the Australian Federal Police for the child’s name to be entered on the Airport Watch List. You can only remove a child’s name from the Airport Watch List with a court order. The details of a residence or contact order entered on the Airport Watch List must be renewed every six months to remain effective in preventing the child’s departure. You may be able to prevent your child from getting an Australian passport by raising a Child Alert on the passport system. You may also be able to prevent your child from getting a foreign passport for the child by contacting the relevant consular office in your State.

If you fear that your child has already been wrongfully removed from Australia or retained overseas, you can Contact the Australian Federal Police to request information on the airport arrival/departure details of the child. You will need to determine whether the overseas country your child has been taken to is a Convention country or a country in a bilateral agreement with Australia (for example Lebanon and Egypt). If you do not know where your child is, report your child as missing to your local law enforcement authority.