CHILD CUSTODY & PARENTING ARRANGEMENTS Lawyers Sydney

A family lawyer’s role is to guide you through a complex and often emotionally charged process, aiming to achieve an outcome that is in the best interests of your children while also protecting your legal rights by: 

• Providing legal advice: Lawyers help parents understand what the law considers “the best interests of the child,” which is the paramount consideration in all parenting matters. This includes advising on issues like parental responsibility, who the children will live with, and how time will be spent with each parent.  

• Formalising agreements (Consent Orders): A family lawyer can help you reach an agreement with the other parent and draft this agreement into a legally binding and enforceable document known as Consent Orders. 

• Negotiation and Mediation: Lawyers can act as your advocate during negotiations with the other parent or their legal representative. They can also provide support and representation during Family Dispute Resolution (FDR), a mandatory mediation process that most parents must attempt before going to court. A lawyer’s presence can help ensure your interests are protected and that the discussion remains productive.  

• Court Representation: If an agreement cannot be reached through negotiation or mediation, a family lawyer will represent you in the Federal Circuit and Family Court of Australia. They prepare and file all necessary court documents, gather evidence, and present your case to the judge to seek a parenting order that is in the best interests of your children. 

• Enforcement of Orders: If a parent fails to comply with an existing court order, a lawyer can assist you in taking legal action to enforce it. This may involve filing a contravention application with the court. 

Yes. All these terms refer to the decisions which must be made regarding the children of the separated couple e.g. who the children live with and how much time they spend with the other parent, as well as a list of other issues dealing with the welfare of the children.  

When a couple separates decisions need to be made about any children under the age of 18 years. One of the main decisions is who the children will live with and how much time they will spend with the other parent. Another issue to be decided is which parent will have the responsibility of making the important long-term decisions about a child’s welfare – one parent or both parents? The court no longer automatically assumes that equal decision making is beneficial. Instead, the court will consider a child’s safety and their developmental needs as key considerations when making a decision about parental responsibility.  

Examples of major long-term decisions are those concerning the child’s education, health, and religious upbringing. With guidance and negotiation, many of these issues can be decided by the parents by agreement through consent orders, which are legally binding and enforceable.  

If an agreement can’t be reached, the matter can be decided for the parents by the court. 

Yes you can. This can be done in one of the following ways: 

1. Parenting Plan: you and your former partner can reach an informal verbal agreement on child custody and parenting arrangements that can be written up into a document known as a parenting plan. The disadvantage of a parenting plan is that it cannot be enforced if either parent does not adhere to it; OR 

2. Consent Orders: you and your former partner can reach agreement on child custody and parenting arrangements and this agreement can be formalised into a legal document called consent orders. The advantage of consent orders is that they are legally binding and enforceable if either parent does not adhere to them (i.e. breaches the orders).  

Consent orders are like a contract between the parents on parenting issues. Even if parents are generally in agreement on how to raise their children, this may change after separation or at some point in the future, which is why it is best to address these issues by setting them out in a formal enforceable legal agreement called consent orders.  

With consent orders, parenting issues are decided by the parents, not the court.  

Consent orders can be reached by the parents in either of the following ways: 

1. The parents may agree on all the parenting issues on their own and then see a lawyer to write up their agreement into consent orders, which are then simply approved by the court; or 

2. The parties may need help in reaching agreement on parenting issues and may see a lawyer to assist them to negotiate an agreement which can then be written up into consent orders by the lawyer. The negotiation process may need to involve mediation. 

Consent orders are basically a legally enforceable document which sets out the agreement parents have reached on how to raise their children e.g. where the children live, how often they spend time with the other parent, who the child spends special days with, what school the children will go to, what religion they should be raised in, who takes the children to medical appointments, what medical treatments/medications a child can have, whether one parent may take the children overseas and who children spend holidays with, etc.   

Court orders may deal with the same parenting issues. The difference is that  with consent orders the parents reach the agreement themselves, whereas with court orders it is a judge that makes the final decisions.  

A parenting plan and consent orders can cover the same parenting issues. The difference is that parenting plans are not legally enforceable if either parent does not comply with them. Consent orders are binding on both parents and legally enforceable.

There is no legal requirement to formalise any child custody or parenting arrangements. You and your former spouse may simply verbally come to an agreement on how you will parent your children or write an informal parenting plan. Whilst this is a good way to parent if it lasts, the problem is that it often does not last. Circumstances may change and people may change. A former partner may change their mind because they have re-partnered or otherwise, relocate and take your children with them, or take your children overseas without consulting you, etc. Since there is no formal parenting arrangement setting out the ’rules’ of your child custody or parenting arrangements, you will generally not be able to stop them by reminding them of your verbal agreement or parenting plan.

On the other hand, if you have a formal enforceable agreement (consent orders) or court orders in place, these situations will likely be covered.

Yes. Even though consent orders are binding and enforceable, this does not mean they are set in stone and can’t be varied. As the needs and circumstances of children, parents and families can and often do change, it is natural for parents to be concerned about balancing the finality of consent orders with the need for flexibility.

The simplest way to vary consent orders is by written agreement between the parties, without the need to involve lawyers or the court.

If one parent wants to vary the consent orders but the other parent does not agree, you will need to apply to the court to vary the consent orders for you. Certain requirements need to be met in order for the court to consider making changes to consent orders, such as there being a significant change in circumstances to warrant revisiting the orders.

Remember that having consent orders in place does not prevent the parents from applying the orders flexibly when they agree to do so – but the orders are always there to fall back on if a disagreement about parenting arises.

Ultimately the cost depends on you and your former partner.  

If you have reached agreement on your own and would like us to write up consent orders setting out your custody agreement, then we can charge you a fixed fee for this. 

If you and your former partner have not reached agreement and would like our assistance to negotiate a custody agreement (consent orders) the cost will be determined by the amount of time you take to reach agreement – the longer you take, the higher the cost.  

If you and your former partner are unable to reach agreement either alone or with our assistance and the matter needs to go to court, it will cost a lot more.  

Each parent usually has their own lawyer in custody cases and generally pays their own lawyer’s costs, court filing fees and any related third–party costs. In rare cases the court may ask one parent to pay a portion of the other parent’s legal costs.  

Yes, JustFund may be able to help you. LEDA Lawyers has partnered with a family law finance provider called JustFund who may be able to assist you by offering you a payment solution for your family law legal fees if your matter involves property division as well as child custody / parenting issues. If you are eligible, JustFund offers a flexible line of credit to cover family law fees and disbursements for your divorce or separation. Unlike traditional lenders, JustFund focuses on your unique circumstances, not just metrics like income, employment history and credit score. Please let us know if you are interested in more information on JustFund. In the meantime, please feel free to explore their website at: www.justfund.com.au 

No. The court decides which parent the children will live with and which parent children will spend time with (or whether children are to spend equal time with both parents), based on what is in the child’s best interest. The court makes this decision by weighing up all the evidence the parents present to it.

No. There is no current law which requires children to spend equal time with both parents.

The main concern of the court when deciding child custody matters is what is in the child’s best interest. This means that the court will consider a variety of factors according to the circumstances, including the child’s safety, the developmental, psychological, emotional and cultural needs of the child, and the importance of the child maintaining a meaningful relationship with both parents.

In some cases, the court may appoint an Independent Children’s Lawyer (ICL) to represent the child’s best interests. The ICL provides an unbiased perspective on what is in the child’s best interests and advocates for their needs during court proceedings.

Parental responsibility refers to the responsibilities and important long-term decisions parents need to make about raising their children. Examples of these include decisions about health, education, and religious upbringing or cultural matters.

Lawyer assisted mediation can help the parents negotiate a child custody or parenting agreement which can be set out in a legally enforceable document called consent orders. If the matter does not go to court, mediation is not a legal requirement.

It is, however, generally compulsory for parents to attend mediation with a specially qualified mediator recognised by the court, before commencing court proceedings.

Courts and their decisions are generally accessible to members of the public. However, while the principle of “open justice” means that most court hearings in Australia are open to the public, family law matters have specific protections to ensure a degree of privacy and confidentiality. The Family Law Act 1975 provides that all proceedings should be heard in open unless a court decides otherwise. Courts can make orders to protect sensitive information, particularly regarding children, financial records, and personal matters, and it is an offence to publish proceedings that identify persons or witnesses involved in family law proceedings. This is a crucial distinction designed to protect vulnerable individuals, particularly children, during a sensitive and stressful time.

It is, however, generally compulsory for parents to attend mediation with a specially qualified mediator recognised by the court, before commencing court proceedings.