Parental rights and children's matters
Our team works with separated parents, including same-sex parents, to help them come to an agreement on how their children will be cared for following the separation. Our services in this area include:
- Residential and care arrangements (formerly known as custody and access arrangements) - determining with whom the child will live and spend time.
- Parental rights and issues of parental responsibility for day-to-day and long-term decisions involving the care, welfare and development of children.
- Court orders in respect of same-sex relationships, including orders made under the Assisted Reproductive Treatment Act 2008.
Family law mediation
It is compulsory for all parents who have separated to attend mediation in an attempt to come to an agreement on arrangements for how their children will be cared for.
We can provide parents with legal advice before they attend their mediation session, so that they are aware of their parental rights and responsibilities under the Family Law Act.
If parents are able to reach agreement at mediation, we can then formalise that agreement by lodging an application with the Family Court, which then makes the agreement binding and legally enforceable.
If an agreement cannot be reached during mediation, we can help with:
- negotiating an agreed outcome with your former partner
- making an application to the Family Court for Parenting Orders
- responding to an application for parenting orders made by your former partner
- varying any Family Court Orders which are currently in place.
We can also assist people who may not be the parents of a child, but who have a significant involvement in that child's life, such as grandparents.
Read more about how we can assist you in relation to family law mediation.
Parental rights - sperm donors and surrogates
The issue of parental rights has particular implications for gay male couples and heterosexual couples who have a child via surrogate, as the law does not recognise sperm donors as fathers.
This means, for example, that where a man and his partner (whether the partner is male or female) conceive a child with a woman via artificial insemination, the man is not legally considered to be the parent of the child, even though he is biologically that child's father. Rather, the biological mother and her partner (if she has one) will be deemed to be the child’s parents.
Obviously this can have implications for a family in terms of the father's (or both dads if the couple are in a gay male relationship) legal right to make decisions for their child in relation to schooling, medical care, religion etc.
It is therefore very important that gay male couples or other couples whose child was born via surrogate take steps to legally formalise their parental rights by either adopting the child or by obtaining parenting orders from the Family Court.
We can assist heterosexual and same-sex couples in all aspects of negotiating and establishing parental rights in relation to their children.
Parents, whether they are separated or together, have a legal obligation to support their children. Child support refers to an amount of money that is payable to the parent with whom the child (or children) live to assist them with the costs of caring for the child. Child support can take the form of regular cash payments, payment of specific expenses such as school fees, sporting expenses and the like, or a combination of both.
In Australia, child support is regulated and dealt with by the Child Support Agency. Parents can, however, come to an agreement between themselves as to the amount of child support payable. This agreement can be reflected in a child support agreement, which is a binding agreement that can last until the child turns 18.
This area of family law is highly complex and technical, and requires specialist assistance to ensure the best outcome for you and your children.
We can assist you by:
- liaising with the Child Support Agency and providing advice and support in relation to the assessment process;
- providing guidance and assistance in dealing with the departure process which is essentially an appeal against a decision of the Child Support Agency;
- representing you in appeals to the Social Security Appeals Tribunal and the Family Court; and
- negotiating appropriate child support arrangements including the drafting of child support agreements.
Relocation and unlawful removal of children
We can advise on relocation and parental rights, where one parent wishes to move with the child or children to a location that is some distance away from the other parent, such as interstate or overseas.
We also provide advice concerning the recovery of a child who has been unlawfully removed from a parent, or not returned to a parent.
There are important factors that same-sex couples with children, or who are planning to have children, need to consider - particularly in relation to their parental rights (see the section on sperm donors and surrogates above). We assist same sex couples and families in applying for parenting orders, for example to ensure they are legally recognised as parents of their children.
We also provide donor, adoption and surrogacy advice to same-sex prospective parents, as well as drawing up the related agreements.
Read more about how we can assist same-sex couples.
Parental rights and children's matters - further reading
- Child support - taking care of your kids
- Fertility treatments sperm donors and parents... Who's your Daddy?
- Parental rights and responsibility - gay and lesbian couples
- Surrogacy - what are your options?