Legalese and Parenting Matters

Family Law Practitioners no longer refer to terms such as “custody” “access” and “guardianship” when dealing with parenting matters as these terms imply ownership. There are no property rights which attach to children.

Instead the following terms are utilised:-

“LIVES WITH” – which details the person with whom a child/ren is to live;

“SPENDS TIME WITH”  which defines the extent of contact between a child/ren and the other parent;

“SPECIFIC ISSUES”   which sets out various aspects of parental responsibility, such as schooling.

Unless a Court orders otherwise, there is an automatic presumption that both parents equally share parental responsibility for their children until the children reach the age of 18 years.  This parental responsibility remains whether or not either party decides to remarry or have other children.

When parents are able to agree with whom the children live with and also agree when they are to spend with the other parent, we recommend that a written Agreement be signed by the parties and filed with the Court. These Agreements are known as “Consent Orders”. The reason why we recommend parents enter into Consent Orders is that unfortunately sometimes relations between parents deteriorate after separation. Consent Orders provide an enforceable obligation (which is enforceable on both parents) regarding the care of the children.

Occasionally parents need assistance to work out what is the best care regime for their children after separation.  In this instance, mediation is beneficial to bring about a resolution without the intervention of the Court.   Once mediation has been undertaken and a resolution reached, the Agreement can then be documented into Consent Orders.

If parents are unable to agree on parenting matters, then a Judge will make Orders specifying with whom the children are to live with and the time the other parent is to spend with the children.

Where a matter is referred to the Court, a Judge’s first and foremost concern is “what is in the best interests of the child”, not what is in the best interests of Mum or Dad. Therefore, we find that it is much better for parents to enter into an Agreement that they can both live with and operate within the scope of an Agreement instead of a Judge imposing an order on the parties.

do grandparents have rights


Frequently in today’s busy society, grandparents are being called upon to spend their retirement years assisting in the care of their grandchildren, especially where both parents are working. A strong bond between grandparents and grandchildren ensues as grandparents invest their time in the important role of nurturing and developing their grandchildren when their parents are at work. When a divorce fractures a family unit often the bond between grandparents and grandchildren is overlooked.

Often grandparents suffer the heartbreak of their child’s divorce, not only because heir child is in pain, but because they find that they can be cut off from contact with their grandchildren, especially where the divorce is bitter and hostile.  This is traumatic to both the grandparents and the grandchildren. This is particularly relevant where, for example, the father’s parents have been caring for the children but after separation the mother refuses to allow them access to the children or vice versa.

What can grandparents do in this situation? The Family Law Act recognises that the best interests of the children are a paramount consideration when determining who they shall live with and spend time with. A fundamental factor in this is the role that a grandparent can play in the care and development of their grandchildren and the strong attachment they may have with each other. The law recognises that families are unique and that persons, other than parents, can also provided a significant role in the upbringing of children.

Each matter is judged on its own particular set of circumstances and merit. Grandparents have the right under the Family Law Act to bring an Application to the Court and be heard on the issue of contact with their grandchildren.  If a Judge determines that it is in the best interest of the grandchildren that they would be well served by spending time with their grandparents then the Court will make an order to facilitate this contact.

However, Court should only be viewed as a last resort as it is expensive and can lead to the exponentiation of conflict and create more bad blood between waring partners. An alternative to Court is mediation or negotiation with a view that an agreement can be reached between the parents and grandparents regarding the ongoing contact grandparents are to have with their grandchildren.