Making arrangements for children
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In 1996 changes were made to the Family Law Act emphasising the rights of children and the duties and responsibilities of parents toward their children. Separation, divorce or re-marriage does not change these duties and responsibilities. The child's best interests are the main concern of the court.
The law encourages parents and other people interested in the welfare of children, to try and agree on arrangements for children. You can use primary dispute resolution, including counselling and mediation to reach agreement.
If you can reach an agreement about children that you are happy with, you do not have to do anything else. You can choose to write your agreement either in the form of a parenting plan or a consent order. If you cannot reach an agreement, you can apply to court for a parenting order.
What are my children's rights?
The children have a right to spend time with, communicate and continue a relationship with important people in their lives, unless it is not in their best interests.
There is no definite age when children can decide where they will live or who they will spend time with. The court will ask what the children's views are, but will also look at the children's age and how emotionally and intellectually mature they are when it makes a decision. The children do not have to state a view if they do not want to.
What if the other parent does not want to spend time with the children?
The law does not make a parent spend time with or talk to their children if that person does not want to.
My child is 15 or older and doesn’t want to live with or spend time with the other parent. What should I do?
Often older children prefer the parenting methods of one parent over another and start to express choices as to where they want to live or whether they want to see the other parent. This can be challenging for both parents and may not reflect existing court orders.
Where there is an existing court order you should get legal advice.
Where there is no court order, there are many family counselling, mediation or parenting programs that address teenage issues that you can approach with the problem before considering legal action. If you choose to take legal action you are required by the Family Law Act to participate in family dispute resolution i.e. mediation before making an application to the court for a parenting order. A court application can take up to 18 months to be heard by which time the court may consider that a court order is not suitable taking into account the age of the child.
Acknowledgement - Prepared using fact sheets which are copyright to the Commonwealth of Australia and National Legal Aid.