Children and Parenting

When children under 18 years of age are involved, the Court must be satisfied that proper arrangements are made. The primary goal of the Court is to ensure the child receives the best possible outcome. To do this the Court may assess whether psychological or physical harm could come to the child, whether the child will benefit from a meaningful relationship with both parents and many other considerations. If equal custody is granted by the Court, the parents must agree to an arrangement of shared time. In the event of a disagreement between parents, dispute resolution processes will occur and if this fails, a certificate to commence court proceedings in the Federal Circuit Court must be issued by the dispute resolution practitioner.

If contact cannot be agreed between the parents we advise the following:

1. Referral to an independent lawyer who can discuss the issue with both parents and advise on a likely outcome; and
2. Mediation to attempt to resolve the issue between the parents.

If an independent lawyer or mediation does not work then usually the only option is commence proceedings in the Federal Circuit Court or the Family Court.  This is an expensive option however and should be avoided if possible.

A parenting plan is an agreement between parties as to contact.  Parenting plans are not binding and should only be used if the parties are able to generally agree but just want to document the agreement between them.

Consent orders are similar to a parenting plan but are filed and stamped by the court.  They are binding on the parties and are not changed by the courts unless there are reasonable circumstances that require modification.

Mediation is where both parties meet with an independent person (the mediator) to discuss the issues and attempt to reach a compromise.  It can be done via phone or in person and the parties can be in separate rooms or all in the one room if agreed.

The Family Law Act 1975 (“Act”) recognises the significance of children having a relationship with those who are considered important to their welfare, care, and development, which includes grandparents. The Act does not give grandparents an automatic right to see their grandchildren; rather, it provides them with a right to make an application to the Courts to seek Orders to maintain contact or seek custody of their grandchildren. But before a Court can grant Orders, the Court must determine what the “best interests of a child” are, including whom the children should spend time with or live with.

Yes, the Family Law Act allows grandparents to apply for, initiate and be included in child access and custody matters. Family law recognises three avenues for grandparents to secure access, communication and time with their grandchildren. These are:

• Parenting Plan;
• Parenting Orders by Consent (“Consent Orders”); and

Parenting Orders by a Family Court.

Grandparents (or anyone who has and wants to continue an ongoing relationship with the children) can apply for an order to spend time with them. Children have a right to spend time on a regular basis with their parents and other significant people, including grandparents, unless it is not in their best interests.

Consequently, while grandparents have no explicit right to maintain a relationship with a grandchild, a grandchild has the right to maintain a relationship with their grandparents. It is this right, among others, that are considered when an application is made for a court order to include or exclude a grandparent in a child’s life.

If a grandparent wishes to apply for an order they are required to attend family dispute resolution mediation and demonstrate a genuine effort to resolve the matter. Generally, the Family Law Act encourages people to manage conflicts among themselves and to use legal processes as a matter of the last resort.

Parties under an Order are legally obliged to comply. An aggrieved party can apply to the Courts to implement the consequences of non-compliance. Non-compliance can be due to failing to obey the order, making no attempt to obey the order, or if a third party (such as a new partner of a parent) gets in the way of the order.

The Order will contain a range of consequences for non-compliance, which can be of varying severity. For minor breaches, the Court can require parties to attend parenting programs, compensate for lost time with a child, change orders to favour the aggrieved, and apply financial penalties. For serious offences, the Court can order community service, fines or even imprisonment.