How do I get access to my child?
During a separation or family divorce where there are children involved, the best option for the parents is to come to a mutual agreement. This involves both parents agreeing on what will best suit their children’s needs to ensure they spend time with each parent and that parental responsibilities are shared.
Many parents benefit from attending family dispute resolution with a mediator to agree on a parenting plan and discuss family law.
However, if a mutual agreement cannot be reached after completing family dispute resolution, it may be necessary to commence court proceedings to obtain a parenting order. Court intervention is often required when one parent wants access to their child and the other parent is barring or limiting that access.
Parenting orders are a set of orders enforced by a court regarding the parenting arrangements for a child or child custody. A parenting order may deal with one or more of the following matters:
- Who the child will live with;
- How much time the child will spend and communicate with the other parent or with other people, such as grandparents;
- The allocation of parental responsibility;
- The child travelling interstate or overseas;
- Other aspects relating to the care, welfare or development of the child.
In Melbourne, you can file an application for a parenting order with the Family Court or Federal Circuit Court online or in person. Once an application has been filed, the Court will allocate a court date and you will be required to serve the filed court documents to the other party. Family law matters relating to children can be complicated and it is recommended that you obtain legal advice before filing court documents. We also recommend you seek legal advice if you have been served with court documents and need to attend Court.
As discussed later in this article, the Court will order that you have access to your child where it aligns with the overall best interests of the child. The Family Law Act 1975 (Cth) states that the object is to ensure the best interests of the children are met by ‘ensuring that children have the benefit of both their parents having am meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child’.
Where a parenting order has been made but your partner is not allowing you access to your child in breach of the order, you can lodge a contravention application to the Court.
At what age can a child decide who to live with in Australia?
With childrens matters, there is no “one size fits all” legal age at which a child can decide which parent to live with. Instead, there is a range of factors that the Court will consider before making an order on living arrangements. These include:
- The child’s maturity and their level of understanding;
- The nature of the child’s relationship with each parent;
- The extent to which each parent has fulfilled their obligations to the child;
- The likely effect of any changes in the child’s circumstances, including on any separation from either of their parents;
- The practical difficulty and expense of a child spending time with a parent; and
- The capacity of each child’s parents to provide for their needs.
The Court will make its decision on what it determines are the best interests of the child which are made on a case by case basis. It will also take into consideration any strong views expressed by the child about living with one parent over another. The child’s opinion can be expressed through a report by a family consultant, an order for the child’s interests to be independently represented by a lawyer, or any other means the Court thinks is appropriate. It is not a requirement that a child expresses their views; so it may not be a factor in some cases.
Can only one parent have parental responsibility for a child
‘Parental responsibility’ for a child includes all duties, powers and responsibilities parents have in relation to their children.
Some separating parents may seek an order for sole child custody or parental responsibility from the Court to allow them to make decisions about their children without requiring the consent of the other parent. This may also lead to an order which limits or prevents the other parent’s contact with the children. An order for sole parental responsibility can:
- Provide one parent with sole child custody or responsibility for some or all areas of their children’s lives, such as deciding where the children will live, enrolling them in school or making medical decisions for them;
- Provide that the children are to live with one parent exclusively; and/or
- Set out the extent of contact the other parent can have with the children.
The court’s main consideration when making a parenting order is to rule in the best interests of the child.
