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Parenting & Children | Family Lawyers Sydney

As family lawyers who serve across greater Sydney, we can help you with all parenting matters.

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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:

  • How much time a child spends with a parent
  • Parenting arrangements (your plan going forward)
  • Parental responsibilities
  • Custody Disputes
  • Parenting Orders
  • Determination of Parentage
  • Child Support

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.

Parenting Arrangements

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.

What Is Equal Shared Parental Responsibility?

A Court will always start with the presumption that it is in the child’s best interests for the parents to have equal shared parental responsibility. Both parents share the responsibility when making significant decisions regarding their children. These include decisions relating to health, schooling or religion.

There are some instances where a Court will not grant shared parental responsibility. The first is where there has been or there is a risk of, domestic violence or child abuse. The second instance is when the parents cannot communicate or co-parent, or it is not practical. For instance, due to the significant distance between parents.

It’s important to note that shared parental responsibility does not necessarily mean that each parent is able to spend equal time with their children. This aspect is determined on a case by case basis. The Court does not need to consider equal or significant and substantial time with each parent if the Court determines that it would not be in the child’s best interests.

Equal Time Or Significant And Substantial Time

The decision regarding whether a child will have equal time with both parents is determined based on what is in the best interests of the child. If the Court cannot be satisfied that providing equal time with both parents is the best option for the child, or it is not practical to do so, the Court does not need to consider giving the child significant and substantial time with both parents.

However, equal time or significant and substantial time means that it is a requirement for a parent to have time with their child, including:

  • Time on weekends and holidays
  • Time on other days, including on weekdays and overnight during the day and at night
  • Participation in events that are significant to the parent and child, such as Mother’s or Father’s Day, sports days and birthdays
  • Allowing the parent to be involved in the child’s daily routine.

Providing a parent with significant and substantial time means that the parent isn’t merely seeing the child every second weekend and for half of the school holidays. This ensures that both parent and child are actually able to spend quality time together and have a meaningful relationship.

Both parents are able to play an equal role in all aspects of the child’s life, including the day-to-day aspects, both difficult and fun aspects.

In some circumstances, it may not be in the child’s best interests to have significant or substantial time. Every situation is different and will be determined based on the circumstances specific to them.

Parenting Plans And Parenting Agreements

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.

What If We Can’t Agree On Parenting Arrangements?

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.

The new merged Family Court system means that 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. 

Learn more about mediation on our Resolution Pathways page here.

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.

Need Help Getting To An Agreement?

Seek legal advice before agreeing to your parenting plan or arrangements.

Parenting Orders

Parenting Orders are sometimes known as Consent Orders. This written agreement that is approved by the Court can address:

  • How decisions are to be made about a child
  • How much time the child should spend with each parent
  • Whether the time will be equal with each parent or substantial or significant time with one parent
  • How the child will be cared for during school holidays, pupil free days or on days when sick and unable to attend school
  • How much time a child will spend with a grandparent or other relatives
  • What other forms of communication a child will have with a parent
  • Obligations to attend family, educational, religious or cultural events
  • Arrangements regarding overseas holidays and whether they are permitted
  • How the parents will communicate with each other
  • What information the parents must share about the child
  • Restraints about what the parents can do or say near the child
 

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.

How The Court Makes Decisions About Parenting Orders

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:

  • The benefits associated with the child having a meaningful relationship with both parents
  • The need to protect the child from any family violence, physical or psychological harm, abuse or neglect
  • Each parent’s capacity for taking care of a child and providing for the child’s needs
  • Any views expressed by the child, factoring in the child’s maturity and age
  • The child’s relationship with both parents, and with any other person who is important (grandparents, siblings)
  • The possible effect on the child by having a change in circumstances, including separating siblings
  • The willingness and eagerness of a child’s parent to encourage a close and ongoing relationship with the other parent

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, go to the Child Protection page here.

What Is A Family Report?

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).

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Determination Of Parentage

This is where there are uncertainties about the paternity of a child. We assist people on both sides of these issues.

Are You Unsure Whether You’re The Father Of A Child?

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

Who Pays For The DNA Test?

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

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 to 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).

How Child Support Is Paid

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.

Get Your Child Support Right

Want to ensure that there is a formal agreement in place for ongoing Child Support?

Family Lawyers Sydney

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 three office locations – Penrith, Sydney CBD and Norwest – as well as phone and online consultations if that is easier.

Making The Right Decisions For Your Children

Starts with advice that is specific to you and your children.

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