Children

  • Who makes decisions about children?
  • What is the best way to sort out arrangements for the children once we have separated?
  • Can grandparents and other family be involved?
  • What is a parenting plan?
  • Do I need to go to court?
  • What if there is no agreement?
  • Applying for parenting orders where there is no agreement.
  • What happens when you apply for a parenting order?
  • Do the children have to spend equal amounts of time with each parent?
  • What if my children do not want to visit their other parent?
  • What if court orders for parenting time are not being followed?
  • What if the arrangements are not working?
  • Can I take my children interstate or out of the country?
  • What if children are not returned after seeing their other parent?
  • Who has to financially support the children (pay ‘child support’)?

Many parents come to an arrangement about children themselves.

See contacts for services to help with this if needed. 

The Family Law Act applies to all children of all relationships whether the parents were married, in a de facto relationship or never lived together.

It is best to get legal advice if you have children under 18 years old.

Who makes decisions about children?

Parents have legal decision making responsibility for children who are under 18 years of age.  Usually this will be shared evenly between both parents. This is called ‘equal shared parental responsibility’.  This means parents have to try to make important decisions together about their child including:

  • which school the child will go to;
  • what name the child will have;
  • decisions about the child’s health;
  • the child’s religion; and
  • where a child will live, especially if it will affect the time they spend with the other parent.

This decision making responsibility will not be shared if it can be shown that there has been child abuse, domestic violence, a risk of either of these or it’s just not in a child’s best interest.  Sometimes a court will give this decision making responsibility to one parent only or to another person (such as a grandparent, other family member  or carer) if this is in a child’s best interest.

What is the best way to sort out arrangements for the children once we have separated?

If possible, try to come to an agreement with your former partner. It is helpful if this agreement is written down and signed and dated by each parent. It is then called a ‘parenting plan’.

You can also agree to ‘consent orders’. If you can’t agree the Court can make parenting orders. This can be a long and expensive process.

Legal Aid may be able to help. Our lawyers can provide legal advice, and eligible applicants may access our Family Law Conferencing (FLC) service which provides family dispute resolution (mediation) with the help of lawyers.

A Family Relationships Centre or other dispute resolution service can also help with parenting plans, but they cannot provide legal advice.

See the ‘Family Dispute Resolution’ section for more information.

See Contacts for where to get help.

Can grandparents and other family be involved?

Extended family can play an important part in children’s lives. If it is in the children’s best interests, grandparents and extended family can be included in family dispute resolution, parenting plans or court orders. Try to work it out with those involved. Get legal advice.

What is a parenting plan?

A parenting plan is a written agreement, signed and dated by both parents and sometimes other people involved.

A parenting plan should include:

  • where the children live
  • who the children spend time and communicate with, and when
  • school or childcare arrangements
  • medical issues
  • religious or cultural practices
  • financial support for the children
  • how parental responsibility is to be shared
  • how disagreements about parenting will be sorted out
  • how those with parental responsibility will communicate with each other.

Do I need to go to court?

If you and the other parent can agree, you do not need to go to court. If you want the agreement to be legally enforceable  (binding), you can ask the court to make your agreement into consent orders.

The family law system encourages people to try to agree, if they can. Family Dispute Resolution can be much cheaper than going to court, and more flexible. You can still get legal advice and help while doing this. for more information see Family Dispute Resolution.

What if there is no agreement?

If there is no agreement, you can apply to the court for a parenting order. You will have to go to family dispute resolution before you apply for a parenting order. There are some exceptions to this.

See the Family Dispute Resolution’ section.

A parenting order can say where the children live, who they spend time and communicate with and other issues such as where they will go to school.

For detailed information see the Australian Government publication Parenting orders– what you need to know

The court’s main concern is for the children. The court will decide what is in the children’s best interests.

In deciding what’s in the best interests of children, the law sets out a list of things called ‘primary considerations’ and ‘additional considerations’  that must be looked at:

Primary Considerations:

  1. The benefit to children of meaningful relationships with both parents; and
  2. The need to protect children from physical or psychological harm and exposure to abuse, neglect or domestic violence.   This is put above the need for meaningful relationships if children are at risk.

Additional Considerations :

  1. Views of the child (depending on their maturity and level of understanding);
  2. The child’s relationship with their parents and other people (like grandparents & relatives);
  3. A parent’s readiness and ability to help and encourage a child to have a close and continuing relationship with the other parent;
  4. How a child may be affected by a change  in circumstances, including separation from a parent or person they were living with, including  a grandparent or other relatives;
  5. Any difficulty and expense of a child spending time with and communicating with a parent especially if they live a long distance apart;
  6. Each parent’s / caregiver’s ability to meet the child’s needs;
  7. The maturity, sex, lifestyle and background of the child and their parents, and any other things about  the child the court thinks is important;
  8. The right of any child to enjoy their culture – for example Aboriginal or Torres Strait  Islander children – and if the parenting order might affect  that right;
  9. The attitude that each parent has to the child and to their responsibilities of parenthood such as financial responsibility.
  10. Any domestic violence involving the child or a member of the child’s family;
  11. Any domestic violence order that applies to the child or a member of the child’s family;
  12. Whether it would be better to make a court order that would stop further court applications  being made and court hearings about the child; and,
  13. Any other fact or thing the court thinks is important.

Applying for parenting orders where there is no agreement

To ask the court for parenting orders, you need to file an application form and a supporting affidavit. You will need the following forms:

The affidavit is your statement of what has happened and why you want the court to make the orders that you are asking for in your application. You need to get a Commissioner for Oaths or Justice of the Peace (JP) to administer an oath and witness you signing your affidavit (but not your application). The Court usually has a Commissioner for Oaths or JP available to help with this. There are strict rules about how you officially deliver (‘serve’ ) documents. In most cases, copies of any application and supporting documents must be given to the other person directly. A do-it-yourself service kit is available on the Federal Circuit Court of Australia website.

What happens when you apply for a parenting order?

Initially, the Court will make interim (temporary) orders that will apply until final orders are made. After interim orders have been made, the Court will then put the case in the court list to see if the case can settle.

If your case cannot be settled, the Court will list the case for a final hearing (also called a trial) before a Judge who will decide what is best for your children.

It can take a long time to proceed from interim orders to the commencement of a trial. If your case is urgent and there are special circumstances, the court may agree to put your case before others on the waiting list.

See  the Federal Circuit Court of Australia website for more information about court procedures.

Parents (including same-sex parents), grandparents or anyone concerned about a child’s welfare can negotiate or apply for parenting orders.

Do the children have to spend equal amounts of time with each parent?

No. Just because the law says that parents should share responsibility for the children (in most cases), that does not automatically mean that children have to spend equal amounts of time with each parent, although the court must consider this.

Think about what arrangements are in the best interests of the children and what is reasonably practical. That may be equal time, substantial and significant time (which includes weekdays, weekends, holidays and special occasions) or some other amount of time.

It is best to think about the quality of care, providing a settled environment and working towards a plan where both parents feel satisfied that the children’s needs are being met. Every child has different needs.

You can get more information about children and family law at http://www.familycourt.gov.au/

What if my children do not want to visit their other parent?

This will depend on the children’s ages and if there are court orders about spending time with the parent. Even if the children refuse to visit, you should  encourage them as it is generally considered to be in their best interest to have a meaningful relationship with both their parents as long as they are safe and protected from harm.

If you believe that spending time with the other parent puts the children at serious risk of physical or mental harm, get legal help quickly. The police and other authorities may also need to be told.

What if court orders for parenting time are not being followed?

If the order is for you to spend time or communicate with the children and the children are being stopped from doing this, then the order is being broken. You should get legal advice about what you can do. If the children live with you and the other parent does not turn up to spend time with the children, you cannot make the other parent do this.

You should get legal advice to make sure court orders are being followed, or if you need to change an order.

What if the arrangements are not working?

Over time, the children and their needs change as do those of their parents.  Arrangements may need to be worked out differently. It is best to talk about this with the other parent and try to sort it out. If there are court orders these will still apply, even if your situation has changed.  You can consider doing a parenting plan to change some of the arrangements you had in court orders if the other parent agrees to the changes.

You can get legal help to do this if you can’t sort it out with the other parent. The Northern Territory Legal Aid Commission may be able to help you work out a new arrangement. A Family Relationships Centre or other dispute resolution service can also help, but they cannot give legal advice.

Can I take my children interstate or out of the country?

Yes, but only if you have the permission of the other parent or a court order that says you can.

You should get written permission from the other parent. You may need this to apply for a passport for the children. Whether you get permission may depend on if you are simply travelling for a holiday or planning to move permanently (relocate). If you cannot get permission you may need to get a court order.

The law says children have a right to have a relationship with both parents, and other important people in their lives. Moving a long distance away or interstate or overseas will affect these relationships. If there are parenting orders, get legal help before doing anything that may break them.

If you move to a place that makes it harder for children to have a relationship with a parent or other person, the court may make location and recovery orders and have Police return the children to where they usually live.

What if children are not returned after seeing their other parent?

Even if there are no court orders you can still apply to the court to have the children returned to the parent who has been caring for them. Seek legal advice straight away.

If there is an order that the children live with you, this does not mean the police automatically have the power to return them to you. You may need to get a court order to have them returned.

Get urgent legal help if you think that the other parent may take your children out of the country without your permission (abduction). You can ask the Court for urgent orders to stop this happening. The courts have a 24 hour telephone number for such urgent situations. Act quickly.  The court orders the Australian Federal Police to place the children’s names on the Family Watch List (formerly called the Airport Watch List) so they cannot leave the country.  Sometimes the Australian Federal Police will accept a copy of the application you file in court asking for this order to put the names on the Family Watch List and accept a copy of the order later.

You should think about contacting the Department of Foreign Affairs and Trade (DFAT) to place a Child Alert Request. they may then consider the circumstances before issuing an Australian passport or other travel document to a child.

See the Contacts section for help.

Who has to financially support the children (pay ‘child support’)?

Every parent has a financial obligation to support their children. The amount to be paid, and which parent pays the other, depends on:

  • the income of each parent
  • the amount each parent needs to support themselves
  • the amount of time each parent spends with the children
  • the number and ages of the children
  • if either parent has a second family or families they need to support.

There are other factors which may affect your child support. It is important that you get legal advice about how the law might affect you. Same-sex parents can also apply for child support.

For more information see child support or contact the following:

Department of Human Services – Child Support phone 131 272 or

http://www.humanservices.gov.au/customer/dhs/child-support

Northern Territory Legal Aid – call the helpline on 1800 019 343  or visit http://www.ntlac.nt.gov.au/.

You can ask Child Support to assess what you or the other parent has to pay.

You can also ask that they collect child support for you from the other parent.

You can reach your own informal agreement for child support or have a more formal “limited” or “binding” child support agreement.  For more information about types of child support agreements visit CSA.

If you are having difficulties with child support payments or would like legal advice, contact NT Legal Aid  on 1800 019 343 / www.ntlac.nt.gov.au