Parenting & Custody

Following the break down of a de facto relationship, arrangements for children aged under 18 years (“child custody” arrangements) need to be made. These are determined by agreement between the parents, or else in accordance with the provisions of the Family Law Act 1975. A Parenting Order is an Order made under the Act that deals with one or more of the following matters set out in section 64B(2) of the Act:

– The person or persons with whom a child is to live;

– The time a child is to spend with another person or other persons;

– The allocation of parental responsibility for a child;

– If 2 or more persons are to share parental responsibility for a child — the form of consultations those persons are to have with one another about decisions to be made in the exercise of that responsibility;

– The communication a child is to have with another person or other persons;

– Maintenance of a child;

The steps to be taken before an application is made to a court for a variation of the order to take account of the changing needs or circumstances of: a child to whom the order relates; or the parties to the proceedings in which the order is made;

– The process to be used for resolving disputes about the terms or operation of the order; and

– Any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.

It does not matter whether a child is born within or outside of a marriage or de facto relationship, or whether the parents were ever in a relationship with each other at all. All children have the same standing under the Family Law Act.

Under the Australian family law, a child is considered to be the child of a person who has, or had, a de facto partner, if the child is a child of both that person and the person’s de facto partner; or the child is adopted by the person and the person’s de facto partner or by either of them with the consent of the other; or the child is a child of both that person and the person’s de facto partner born as a result of artificial conception or under surrogacy arrangements (section 60HA of the Family Law Act).

Parenting Orders can be made by the consent of both parents (‘Consent Orders’) or, where agreement cannot be reached, by the Court. In deciding whether to make a particular Parenting Order in relation to a child, the Court must regard the best interests of the child as the paramount consideration (section 60CA of the Act).

As the Australian family law recognises the rights and welfare of all children equally, there are general laws and principles that apply to all child custody disputes, irrespective of the relationship of the parents.

For a detailed understanding of how the law applies to all child custody disputes, please see our section on Child Custody.

If you are in a de facto or same sex relationship and need assistance with a child custody dispute, our experts at Prime Lawyers – Family Law Division can help. Contact us to make an appointment with a family lawyer at your nearest Prime Lawyers office.

We have offices in Sydney, Parramatta, Chatswood, Sutherland and Wollongong.