Children Issues

Children’s matters are one of the most sensitive areas of family law, especially when there are disputes regarding their living arrangements. We understand the difficulties of these situations, and our focus is always on helping you negotiate with your former partner and reach an agreement about what is the best arrangement for your children.

We work quickly and practically to minimise disruption to your children’s lives and their exposure to the dispute, and always provide the best advice about the most positive and sensible approaches to take moving forward. The wellbeing and best interests of your children are of utmost importance, and we have a wide network of trusted governmental and private Family Dispute Resolution providers, counsellors and child psychologists that we can refer you to, to help you deal with the situation as constructively as possible.

As with all Family Law matters, but particularly with disputes regarding the living arrangements for children, our focus is on assisting you to negotiate and reach an agreement as to what is best for your children. As with any Court decision about their living arrangement, our advice to you will focus on what is in the best interests of your children as this is the paramount consideration under the Family Law Act.

When it comes to negotiating outcomes for children’s matters, it is important to take a practical and sensible approach, which minimizes the exposure of children to dispute and adult issues. To do this, we will provide you with realistic advice as to outcomes and warn you if we feel you are acting in a manner which would be considered not “child focused” or if you would be considered as not facilitating or encouraging a relationship between your child or children and their other parent.

Sometimes, however circumstances are urgent and if that is the case, we will act swiftly to bring your matter to the attention of the Court and any relevant government authorities to ensure that your children are protected from the risk of abuse or harm.  Such urgent circumstances can include threats of relocation or removal of children from the Commonwealth of Australia, instances of disclosure of physical, sexual or emotional abuse or circumstances of family violence.

If matters are not urgent, we will provide you with appropriate advice to assist in your negotiating an outcome for your children and advise you on the requirement to have Family Dispute Resolution (which is now mandatory under the Family Law Act – except for limited circumstances). We work regularly with governmental and private Family Dispute Resolution providers and can provide you with referrals to many providers depending on your circumstances and the urgency with which you would like to proceed.

We strongly recommend that you obtain legal advice prior to engaging in any mediation or dispute resolution, to ensure that you have realistic ideas about what living arrangements are in the best interests of your child or children – which will give you the best possible prospects of resolution at the earliest time (ultimately saving you both emotional cost and financial cost of protracted negotiation or litigation).

  • Orders regarding the living arrangements for children should, if at all possible, cover the whole range of circumstances including:-
  • Allocating parental responsibility;
  • What living arrangements should be adopted during school terms;
  • What living arrangements should be adopted during school holidays;
  • How and on what terms can parents travel overseas with the child or children;
  • How and when communication between the children and each parent should take place;
  • What arrangements should be put in place for special occasions including birthdays, Christmas and Easter;  and
  • What arrangements should be put in place for the transportation and changeover of children between the parents.

Frequently asked questions about children’s matters

Is there an age at which my children can decide where they want to live?

No. There is no age at which children can decide where they wish to live. As children mature, their wishes and views will be given more weight by the Court and by us in negotiation, but ultimately it is a matter for the parents (or the Court) as to what living arrangements should be implemented for their children post separation.

There are processes by which children’s views can be heard, and if appropriate we will provide you with advice and referrals to persons who can meet with your children and discuss their relationship with both parents and make recommendations for the children’s living arrangements. These recommendations can then be used to guide negotiations and discussions with a view to reaching and formalising agreements for children’s living arrangements.

What should I do if there is abuse or violence within the home?

If it is unsafe for you and the children to remain within the family home, then it is imperative that you ensure your and the children’s safety by seeking alternative accommodation. If however, you can remain within the family home with the children, then do so – at least until you have obtained legal advice.

If you are being subject to Family Violence your first contact should be to the local Police and thereafter contact us for advice in relation to all aspects of your Family Law matter.

What should I do about the children spending time with the other parent when there are no Court Orders?

In the absence of any Court Orders or formal agreement for the living arrangements for the children, you should be guided by the obligations imposed on parents by the Family Law Act – namely to facilitate and encourage a relationship between the child/ren and both their parents and important family members. It is important however that any informal arrangements for the children are documented somehow in writing, by email or text message for example, to ensure that there is some written record of communication about the time they are to spend with each parent.

It is also important that records of the time spent between the child/ren and the other parent are maintained – such as keeping a diary – to ensure that if and when you need to recall what has occurred about the children’s living arrangements after separation, you don’t have to rely on your memory alone. This is also useful for Child Support purposes.

If children are not returned to their primary care giver at the conclusion of any agreed time with the non primary caregiver, it is important that urgent steps are taken to ensure that the children are returned to their stable living arrangements (if those arrangements are in their best interests). Should these circumstances arise, we recommend that you contact us without delay.

What can I do to make sure my children are coping with separation?

If your children are at school, make sure you speak with the children’s teacher(s) or school counselor to ensure that their emotional needs are monitored whilst at school. If necessary we can refer you to appropriate counselors or child psychologists for the parents and children to meet with and discuss the children’s reaction to and needs arising from separation.

As a parent, it important that you protect your children from exposure to adult issues and this includes them hearing arguments between you and your former partner, hearing you or others bad-mouthing or name calling towards the other parent, or having direct discussions with them about what they “want” with their living arrangements. Such behavior is not condoned by the Family Law Act or the Court and could ultimately affect the Court’s opinion of what living arrangements are best for the children.

Contact our Family Lawyers, Attwood Marshall and book an appointment today.
With four offices conveniently located at Kingscliff | Coolangatta | Robina | Brisbaneyou can also visit an office near you or you can call us on 1800 621 071 or use our Online Enquiry Form to send us your details.