Parenting and children

Parenting agreements

The care and welfare of children after separation or divorce is understandably an important consideration for parents. When a couple separates, there are often two central issues relating to their children that need to be determined - the children's time with each parent, and the parents' responsibility to make decisions for their children. We address how care arrangements and parental responsibility work in Australia in the FAQs below.

Our lawyers help negotiate and draft parenting orders - enforceable agreements made by a court that formalise living arrangements (known overseas as child custody) and parenting responsibilities. When parents can't agree, we provide expert advice and representation in preparation for, and during, mediation and court proceedings.

We also draft parenting plans for our clients. These are documents that represent an agreement reached between parents about the care arrangements for their children. Parenting plans do not have the same binding effect as parenting orders and are not made by a court, but can be an effective solution for many parents.

Family mediation

The law requires that separating couples try to agree on parenting arrangements before taking court action. We provide support and, if necessary, representation during the mediation process and are able to carefully document any agreed arrangements.

If an agreement isn't reached at mediation we can:

• help you seek a negotiated agreement with your former partner
• file an application with the court seeking formal orders
• help you respond to a court application issued by your former partner

Surrogacy arrangements

Surrogacy laws vary between Australia's states and territories, and it is essential that both surrogates and intended parents are aware of their legal rights, and the potential legal risks, before entering into surrogacy arrangements. Our surrogacy lawyers provide specialist advice and representation regarding:

• surrogacy arrangements (both gestational and traditional) including independent legal advice under the legislation (when required)
• surrogacy and donor agreements
• parentage order applications

Fertility and surrogacy law

Fertility laws in Australia also vary between the states and territories and can raise complex legal issues for donors, surrogates and intended parents. Our fertility and surrogacy lawyers provide specialist advice regarding all areas of fertility law including:

• parentage
• surrogacy
• egg, sperm and embryo donation (including IVF)
• assisted reproductive treatment
• surrogacy and donor agreements
• applications for court orders regarding parentage and parenting arrangements

Relocation and unlawful removal of children

When a child is unlawfully taken overseas it becomes an issue of international law – and this adds complexity. Our team is one of the few in Australia with the experience and global connections to best guide you through that situation. We authored the Australian chapter of Chambers and Partners Child Relocation 2024 Global Practice Guide, a comprehensive resource for family law professionals and family law litigants, covering parental responsibility in Australia, the process for moving internationally with a child, child abduction and the role of the Hague Convention.

It's important to take urgent action if you're concerned that your child or children are at risk of being removed, or have been removed, from their home country without your consent. We recommend getting in touch as soon as you can.

We provide advice to:

• parents seeking to relocate with their child or children
• parents wishing to oppose the relocation of their child or children
• parents whose children haven’t been returned or have been unlawfully removed from their country of residence

More about international family law

Gender dysphoria

Our firm has acted in some of the most significant gender dysphoria legal cases to date. This includes partnering with the Human Rights Law Centre in the landmark case of Re Kelvin. As a result of that case, families can now access stage two treatment for gender dysphoria without making a formal application to the Court, removing what was a stressful and resource intensive process for many families.

We are proud to be at the forefront of this emerging area of law and have acted on a pro bono basis on behalf of many families seeking both stage two and stage three gender dysphoria treatment. We welcome the opportunity to lend our expertise in what are almost always sensitive and highly complex matters.

Frequently asked questions

How much time will my child spend with me?

The fundamental principle concerning care arrangements for children is that the arrangements are in the children's best interests. Note: in some countries, parenting arrangements are known as “child custody”.

The two primary considerations in determining the best interests of a child are the benefit to the child of having a meaningful relationship with each of their parents and the need to protect the child from physical or emotional harm. Additionally, the legislation in Australia sets out several further considerations that must be addressed when determining parenting arrangements. Each family is different and the relevant factors for one family and their children may be different to another. Please contact us to obtain advice that is relevant to your personal circumstances.

What does parental responsibility mean?

Parental responsibility refers to the authority of parents to make decisions in relation to their children, including for example, their education, religion, health and name. The court can provide parents with joint or sole decision-making authority for their children.

Prior to 6 May 2024, there was a presumption that parents had equal shared parental responsibility for their children. This has since changed, and the court now has discretion to decide what form of parental responsibility is in the child's best interests.

Importantly, parental responsibility and "time with" arrangements that are referred to above can be mutually exclusive. For instance, a parent who is not spending any time with a child may still have parental responsibility for that child. We discuss parental responsibility in further detail, as well as the legislative changes introduced on 6 May 2024 in this article.

What is a family report?

A family report is generally ordered in every parenting matter that proceeds to a trial. The report is prepared by an independent third party, usually a psychologist or an experienced social worker, who meets with the parents and makes recommendations for arrangements that the report writer considers to be in the children’s best interests.

While the recommendations in a family report are not binding, the report is usually a persuasive piece of evidence, so it is important to be prepared for your family report interview. While you should discuss the process with your lawyer beforehand, we have prepared this list of important things to remember when attending your family report interview.

What happens at a mediation?

The purpose of mediation is for the parties to reach an agreement without the intervention and expense of court-based litigation. At a mediation, a third-party mediator facilitates discussions between you and the other party. This is a compulsory step in parenting and property matters before filing an application for orders.

On the day of mediation, you will first meet with your lawyer and your barrister (if counsel is briefed) to discuss any pertinent matters and your desired outcome.

The mediator will introduce themselves and there will be an overview of the major issues in the matter. The mediator will meet with the lawyers of both parties to discuss the relevant issues. The parties (usually through your lawyer) will exchange settlement offers. This process is repetitive and concludes either when the parties agree to a settlement, or when the mediator finds that further negotiations will not result in settlement.

During the mediation, the mediator may address you personally to discuss settlement options. You will also be expected to provide instructions to your lawyer regarding the offers made. If an agreement is reached at mediation, we will document the terms of your settlement in consent orders which are then filed with the court, or a financial agreement. Once accepted by the court, your agreement will be legally binding. We also can assist with the implementation and enforcement of your settlement. If mediation is unsuccessful, you may continue to negotiate an agreement with your former partner through correspondence, you may attempt mediation again, or you may seek a judicial determination by the court.

View more commonly asked questions about the legal aspects of family and relationship law in Australia here.