SCB LEGAL
As family lawyers who serve across greater Sydney, we can help you with all parenting matters.
When going through separation and divorce, there are a number of issues parents are concerned about in relation to the care of children.
These include:
Looking for information about Restraints relating to the Care of Children, Child Recovery Orders or Child Protection? Go to this page here.
Looking for information relating to Children’s Court and the Care and Protection of Children? Go to this dedicated page here.
The process of having to determine how you and your child’s other parent will share time, is one of the most challenging parts of any relationship breakdown. As people who assist families every day, we recognise the gravity of having to make decisions about the care of your children, while managing your wellbeing as you navigate the end of a relationship.
One commonly confusing element for separating parents when determining their parenting arrangements, has been the concept of shared care versus shared responsibility.
It is important to know that there has never been any law stating that parents should have equal shared time or care of their children. However, between 2006 and 6 May 2024 there was a legal requirement to start negotiations and for Judges in Court decisions to start from a position (known as a presumption) of equal shared parental responsibility. That is, regardless of the circumstances, both parents had equal decision making powers in relation to significant decisions like schooling, education and health, if that is what they wanted. This was in place from 2006, but is no longer.
Why? Because in circumstances where there has been or there is a risk of domestic violence for instance, giving that parent equal decision making power could open them up to additional risk making that presumption contrary to the best interests of the child. The removal of the presumption allows decisions to be made without having to start at the point of both parents having equal shared parental responsibility.
In family law matters you will hear the phrase ‘the best interests of the child’ used a lot. While you will likely think “I know what is in the best interests of my children”, know that this is specific to the definition of ‘best interests of the child’ in the Family Law Act. That is, the Court’s criteria to make decisions that are in the best interests of your children. This means parents who are looking to reach an agreement without the need of the Court, will need to become familiar with them, and take them into account when determining their parenting arrangements.
As mentioned above, while many parents believe that they are legally entitled to have equal shared care of their children, this has never been the case in Australia.
While the law has historically required parents and the Court to consider children spending “significant and substantial time” with both parents, this is no longer the law.
Where previously there was a presumption for a parent to ensure the other parent had contact with the child, especially significant days such as Mother’s Day, Father’s Day, sports days or birthdays, that is no longer the case. The deciding factors are related to the amendments section of the Family Law Act that details how to consider the best interests of the child.
From 2006 until 6 May 2024 the first consideration listed in the Family Law Act to determine the best interests of the child was: the benefit to the child of having a meaningful relationship with both of their parents. This was followed by: protect the child from physical or psychological harm by being the victim of, or exposed to abuse, neglect or family violence.
As of 6 May 2024, the list of what a Court is to consider when determining the best interests of a child has been condensed and simplified.
While historically there were always avenues to remove the requirement for a parent to have significant and substantial time with a child where there had been, or was a risk of, for example, family violence, the difference is that now, decision making no longer starts with the presumption that both parents are to have either equal or significant and substantial time.
Any shared care arrangements must consider factors including the safety, age, needs and views of the child, as well as the benefit to the child of having a relationship with both parents and other significant people in their lives, and the ability of the parents to meet the child’s needs. The circumstances of the child and their family will be considered on a child by child basis.
This means that no parenting arrangements (or Parenting Orders) are the same. Every situation is different and will be determined based on the circumstances specific to the children.
There are two ways in which parents can determine how they will share the care of their children:
Parenting plans are informal and are used when both parents can agree to a plan to follow.
A more formal agreement, known as Consent Orders, is used when parents want certainty that the plan agreed to, will be followed by both parents. An application to the Court for what is called Consent Orders is required to make the agreement legally binding. There is more information on what details are included in Consent Orders below.
If you and your child’s other parent cannot come to an agreement about how you will co-parent your children, this is where a family lawyer can be helpful. We identify what a Court would likely decide, and negotiate with the child’s other parent on your behalf, with the aim being able to get a resolution faster. If your matter is urgent, it may need to urgently go before the Court.
If that does not resolve the disagreement, the next step is to go to mediation. A mediation is where you and your child’s other parent are supported to come to a decision. Mediations are often done in one location, however it does not need to be face-to-face. This is particularly important if you have experienced family violence. Many mediators offer online mediation or will offer an alternative method to assist a mediation, in these circumstances.
Unless an exception applies, mediation is a compulsory step for people who cannot come to an agreement. It is designed to help you get to a resolution and avoid having to go to Court to have a Judge decide for you. At the end of the mediation, the mediator will make a decision about whether or not both parties have made a genuine attempt to come to a resolution. Upon request, you will be provided with what is called a Section 60i Certificate. Once you have this Certificate, you can file for your dispute to be heard in Court.
In the Family Court system you will get your first Court date within 12 weeks however it is not uncommon for the process to take 2 or more years to finalise, even though the new system’s intention is to have it finalised within one year. It is important for you to understand that historically, the process can take years to finalise. So, if you and your child’s other parent can negotiate to come to an agreement, often effectively achieved with the support of a family lawyer, then you will have the uncertainty of the situation finalised sooner so that you can move on with your life.
When you engage a family lawyer, we communicate with the other parent about what the law says is to happen. When we can make you and them aware about what will likely happen in Court, they can often see reason to come to an agreement earlier.
Mediation is proven to be a very helpful mechanism to assist parents come to a resolution earlier than if you needed to wait for your dispute to be heard in Court. You can do this by yourself with a mediator and the other parent, or you can have lawyer-assisted mediation. Lawyer assisted mediation is most helpful, even if you only seek advice before the mediation itself, so you know what you should and should not agree to, based on your circumstances.
If you and your child’s other parent have tried and failed to resolve a parenting dispute privately through mediation, the next step is to request help from a Judge to decide for you.
Learn more about mediation on our Resolution Pathways page.
Seek legal advice before agreeing to your parenting plan or arrangements.
Parenting Orders are sometimes known as Consent Orders. This written agreement that is approved by the Court can address:
Consent Orders can only be made after negotiations and an agreement is reached between the parents and are applied for and approved by the Court. This agreement is legally binding.
In the event you and your child’s other parent can come to an agreement and wish to formalise your agreement, the Court will assess whether it is in the best interests of the child or children, before making it into an Order. Importantly, the law is gender-neutral, and does not make assumptions about parenting roles.
In the event you and your child’s other parent have not been able to agree, once it goes to Court, you will have a Judge making decisions on your behalf and will make Court-imposed Orders. These Orders are also legally binding.
Parenting Orders are formalised decisions made in relation to the care of children and how major decisions such as health and medical care are made. Parenting Orders are issued by the Court or if parents have reached an agreement between them.
When the Court is deciding whether to approve Parenting Orders, or parents require Court intervention to determine Parenting Orders, to ensure the best interests of the child are of paramount importance, the Court will consider:
If the matter is being dealt with at Court, the Court will likely require an Expert Report or Family Report to be prepared ahead of hearing the parenting disputes to finality.
For information about Restraints relating to the care of children, including supervised contact, visit the Child Protection page.
A Family Report is what can be used to assess a family situation in more depth. This can assist the Court in making long-term Orders for the children at the final hearing. A Family Report is conducted by a Child Court Expert (formerly referred to as Family Consultants).
In preparing a Family Report, the Child Court Expert considers the family’s circumstances and explores any issues relevant to the case. A series of interviews occur during this process and unlike a Child Impact Report, these interviews can span over the course of a few days. Interviews are conducted with all parties and may also be conducted with any other significant people, such as new partners, grandparents or siblings.
Based on the results of these interviews, the observations made by the Child Court Expert and the documentary evidence available, recommendations will be made based on the best interests of the child and the child’s future needs. A Family Report must be released by the Court before either parent can receive it. In addition, it cannot be shown to anyone outside the case without permission from the Court. Depending on the circumstances, the Court may only release the report to the legal representatives involved in the matter (family lawyers & barristers).
We are here to help you understand the law and provide you with straightforward advice.
This is where there are uncertainties about the paternity of a child. We assist people on both sides of these issues.
A person has the right to prove that they fathered a child. This can be done by applying for a Court Order to allow a paternity test.
A father can petition the Court for a paternity DNA test if the mother of the child is refusing to let the child be tested. To successfully receive a Court-Ordered paternity test, the man needs to provide evidence substantiating why he might be the father of the child. An example could be proof that he had a relationship with the mother of the child.
A person may also wish to seek a DNA test to confirm if they are, or are not, the father of a child.
The DNA testing process can take anywhere from 6-8 weeks to complete.
The results of the Court-Ordered paternity test are immediately sent to the Court when they are available. If the results show that the father is the biological father of the child, a Paternity Order is issued. This ensures the father is secure if there is a challenge to his paternity status. This also means that if the paternity test shows that the male is not the biological father, he will not be legally responsible to pay Child Support for that child.SS
This varies and is dependent on the individual case. The Court may Order that the father requesting the DNA test pay the full cost upfront, or may Order that the cost be shared equally with the mother.
Once the testing is complete and depending on the result, either person may be able to seek an Order that the other repay them for the cost of the testing.
If you are seeking support on either side of a parentage matter, our team can assist you. We have acted for both parties in these matters in relation to DNA testing, Child Support and shared care responsibilities. Reach out to our team to discuss your parentage matter confidentially.
Child Support is a payment made from one parent to the other for food, housing, clothes, schooling costs and other core expenses relating to their child after separation. Both parents need to establish the total amount of these costs, and sometimes payments are required even if the children are living part-time with the paying parent. Child Support is paid until the child is at least 18 years old, sometimes longer due to other circumstances such as costs relating to education or disability.
Services Australia (whose department is often referred to as the Child Support Agency) manages Child Support payments and is responsible for determining the monetary amount required. The department conducts a Child Support assessment for you. Once the amount has been set, the parents can arrange the way in which they will make or receive the payments on their own. Centrelink should be contacted if the person is receiving benefits.
Parents can also choose to make a Child Support Agreement, which is a written agreement outlining how much Child Support will be paid, and at what intervals they are to be made (fortnightly, monthly etc).
There are two key ways that Child Support payments can be made:
1. Private Collect
This is a private arrangement between both parents based on an agreed upon amount. Both parents are required to keep a record showing that the payments are for Child Support, especially if paying cash.
It is important to keep records of who received the payment and when, who the payment was for and how much money was paid. If the Child Support payments are made via bank transfer, including ‘Child Support’ in the description field is a good way to ‘keep track’ of payments. This description will then appear on your bank statement.
2. Child Support Collect
The Child Support Agency will collect and send Child Support payments on your behalf. You can elect to use a direct debit or BPAY arrangement with the Child Support Agency. The agency can also arrange for your employer to pay some of your wage towards Child Support, or organise for it to be collected from your Centrelink benefits.
While Child Support is calculated using a formula about the costs of raising children, you and the other parent may wish to ensure that other additional expenses are accounted for, such as additional extracurricular activities. This may occur when both parents come to an agreement about these additional expenses, and to ensure it will be included, it needs to be formalised with a Child Support Agreement.
Want to ensure that there is a formal agreement in place for ongoing Child Support?
Our team understands the gravity of all matters that affect you as a parent and your children. We will listen to your concerns, answer your questions and assist you through this process.
It is wise to make these decisions with the help of someone who understands the short-term and long-term consequences of these big decisions you have to make.
Setting up just one call with our family lawyers will help you feel more confident about what needs to be done first, before anything else. Speaking to our expert team will help ensure the decisions you have to make will serve you and your children not only now, but into the future as well.
We can help you wherever you are based in Sydney. We now offer two office locations – Penrith and Blacktown – as well as phone and online consultations if that is easier.
Starts with advice that is specific to you and your children.
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