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CHILD ISSUES

The future care of the children of a relationship – whether it be a marriage or a de facto relationship – is one of the most difficult issues facing separated couples. Deciding who the children should live with, and how much contact the children should have with the non-resident parent can be one of the most sensitive issues to resolve after a relationship breakdown.

The law in relation to the care of children (other than children who are subject to welfare orders, who are governed by different laws) is covered by the Family Law Act 1975. In regards to children, this legislation is based on the principle that the best interests of the child are paramount. Put simply, the law looks at the situation as: "children have rights, parents have responsibilities". The best interests of the child are considered with reference to a number of factors, including that the child has the right to maintain a personal relationship and have direct contact with each parent on a regular basis. Another of the factors that the law prioritises is the need to protect the child from physical or psychological harm that may be caused in any situation.

Separated couples can make decisions about their children in a number of ways. They may be able to agree between themselves about who the child should live with and how much contact they should have with the other parent. However, unless a court order has been made in regards to the child, this type of informal agreement cannot be enforced.

If parents cannot agree, they may wish to seek mediation or attempt to negotiate with the other party. If this is not successful, a party who is not happy with the existing arrangement for the care of the children, or a party wishing to formalise that arrangement can apply for court orders. Under the present rules, known as the Family Law Rules 2004, a person cannot make an application to the court for orders in relation to children until they have attempted some form of dispute resolution with the other parent, either through mediation or negotiation.

Orders in relation to children, are never really considered to be "final orders" in the way that court orders in relation to property issues can be considered to be final. This is because the law recognises that issues in relation to children’s lives can change, and there needs to be the ability for the court to respond to changed circumstances in the best interests of the child.

This page is not intended to constitute or to be a substitute for legal advice. If you wish to obtain specific advice with regard to your situation please contact our friendly staff on (02) 9662 7388 or email questions to reception@kydonsegal.com.au.