What powers and responsibilities do my parents have?
Your parents have a legal obligation to look after you until you are 18 which includes duties to:
- maintain you
- provide you with necessaries (such as food, shelter and clothing)
- send you to school.
The law gives parents certain responsibilities to ensure that they look after your wellbeing. However, the extent of these responsibilities decreases as you grow older and more able to look after yourself.
Divorce and separation does not change the legal obligations that your parents have towards you. Even if your parents are separated or divorced, both of them still have the same responsibility to look after you until you turn 18. But if your parents can't agree on arrangements for your care when they split up then a court may get involved and make 'orders' which change the way in which parental responsibilities might be shared between your parents.
What happens when my parents decide they want to split up?
If your parents are splitting up, or have split up, things can be pretty tough and confusing.
There are a lot of things to work out including where you will live, who you will live with and when you will see each parent, your brothers and sisters and other family members like your grandparents.
The law says your 'best interests' are the most important thing and it is your parents' job to work out what is in your best interests. Each family is different so there can be many different arrangements that can be made.
As a general rule, the law says it is in your best interests to have contact with each of your parents and your brothers and sisters. Just how and when this happens depends on your family's circumstances.
Your parents can talk about arrangements together and reach an agreement about what should happen. If they do this they do not have to go to court. They may need to get the help of someone outside the family to talk things through.
If your parents can't agree then they can apply to the court for parenting orders. Parenting orders usually deal with:
- whether you will live with one parent or whether they should share your care
- the time you spend with the parent you don't live with
- the time you spend with other important family members
- how your parents make decisions about other important issues like your health, education and religion
How old do I have to be to have a say?
The law recognises your right to contribute to decisions including where you live and will consider any wishes you express about what you would like to happen. If there is a court hearing about you, you do not go to court. The way the court hears what you want is usually by getting someone (such as a psychologist or counsellor) to talk to you about what you think and prepare a family report which your parents and the court will get to see. This family report will tell the court what your views and wishes are. How it does that will depend on your age and maturity.
The court also looks at other factors including:
- the nature of your relationship with your parents and with others
- the likely effect of any changes in your living arrangements
- the capacity of each parent, or of any other person, to provide for your needs, including your emotional and intellectual needs
- your maturity, sex and background (including any need to maintain a connection with your lifestyle, culture and traditions)
- the need to protect you from harm and
- your parents attitude towards you and to the responsibilities of parenthood.
As a general rule, courts prefer not to separate you and your brothers and sisters if you have any. Usually it is in a child's best interests to have contact with both parents unless violence or abuse makes that unsafe.
What is an independent children's lawyer?
Sometimes the court may decide to appoint a lawyer whose job is to make sure your best interests are considered by the court. This lawyer is called an independent children's lawyer.
To give the court information about your wishes and views this lawyer will usually organise for someone (such as a psychologist, counseller or social worker) to talk to you and other people in your life like your parents or grandparents. This person will usually prepare a family report for the court to consider. They might also get information from other sources like your school, doctor or counsellor.
This lawyer recommends to the court what arrangements they consider to be in your best interests. They provide the court with information about your views and wishes but what they recommend to the court might be different from what you want if they think that it is in your best interests after considering all the information they have gathered about you.
The independent children's lawyer should explain how the system works, and choices the court might have to make about your future.
What if I would like to change which parent I am living with or what time I spend with a parent or other family member?
You should start by talking to your parents about what you would like to change.
If the three of you can agree on how to change the arrangements then your parents can deal with changing any court orders or agreements. If your parents can't agree, then one of them can apply to court.
If there are court orders already in place, then these need to be followed until they are changed. The only excuse is if the following the orders puts you at risk of harm. If you are concerned about this you should get some legal advice urgently.
In some cases you might be able to make an application to court yourself, but you should get legal advice about this.
Acknowledgement - Prepared using fact sheets which are copyright to the Commonwealth of Australia, National Legal Aid and the National Children's Law Centre