At McCarthy Durie Lawyers, our experienced family lawyers can assist you in resolving parenting arrangements for your children following separation.

Our Family Law team is focused on helping you address parenting arrangement issues in a respectful, efficient, and cost-effective manner.

Where appropriate, we help clients resolve parenting disputes without going to court, by negotiating with the other parent or representing you at mediation or family dispute resolution conferences.

Where parenting disputes cannot be resolved through mediation, or where there is an unacceptable risk of harm to children, our lawyers have extensive experience representing parents in court proceedings.

What is Parental Responsibility?

The Family Law Act provides that both parents generally have what is known as “equal shared parental responsibility” (ESPR).

ESPR means that both parents must make major long-term decisions for their children jointly — such as decisions about education, medical treatment, name changes, and where a child should live.

There are exceptions to when ESPR applies, such as in cases involving domestic violence or child abuse.

ESPR also means that parents can make short-term, non-major decisions independently when the child is in their respective care.

Parenting - Live With/Spend Time Arrangements

Where a child should live, and how much time they should spend with the other parent and/or grandparents, is often a significant point of dispute between parents.

Under the Family Law Act, when determining parenting arrangements, the court must consider the best interests of the child as the paramount consideration.

In determining what is in a child’s best interests, the court must consider two primary considerations:

1. The benefit to the child of having a meaningful relationship with both parents; and

2. The need to protect the child from physical or psychological harm resulting from abuse, neglect, or family violence.

The court must also consider a range of additional considerations, including the child’s views, the practicality of the arrangements, and any history of family violence.

Where the presumption of equal shared parental responsibility applies, the court must consider whether equal time with each parent is appropriate. If equal time is not appropriate, the court will consider whether significant and substantial time is suitable, provided it is reasonably practicable and in the child’s best interests.

Our Family Law team can explain the principles the court considers when determining parenting disputes and how they apply to your specific circumstances. Each case is unique, and we recommend seeking tailored legal advice before entering into any parenting arrangements.

Consent Orders vs Parenting Plans

Our parenting law experts can assist you in negotiating and formalising agreements that set out parenting arrangements and parental responsibilities.

There are two main ways to document such agreements — through Consent Orders or a Parenting Plan. It is important to understand the difference between these documents.

Our team can advise on which approach is most appropriate based on your individual circumstances.

Consent Orders

Consent Orders are filed with the court and are legally binding. If one party does not comply, the other party can apply to the court to enforce the orders. Once made, Consent Orders can only be varied in exceptional circumstances.

Parenting Plans

A Parenting Plan is not legally binding and is not filed with the court. This means it cannot be enforced if one party fails to comply. However, Parenting Plans can offer greater flexibility, particularly if you anticipate that arrangements may need to change as your child grows older.

We recommend obtaining legal advice from our parenting arrangement experts before deciding which document best suits your situation.

Unacceptable Risk of Harm

In some parenting disputes, concerns may arise regarding physical or psychological harm, or allegations of sexual abuse. One parent may allege that the other poses an “unacceptable risk of harm” to the child.

In such cases, the court considers:

1. The magnitude of potential harm to the child;

2. The likelihood of the risk occurring; and

3. The steps that can be taken to mitigate the risk.

If there is a proper basis for concern that a risk exists, the court may find that an unacceptable risk of harm is present, even where the risk is only a possibility.

If you have concerns about a potential risk to your child, we recommend you seek urgent advice from our parenting arrangement experts.

Interstate and International Relocation

In some circumstances, one parent may wish to relocate interstate or overseas with the child — often for reasons such as family support or financial stability.

When determining whether a relocation should be permitted, the court considers the child’s best interests as the paramount factor. The court will also take into account the relocating parent’s freedom of movement and the relevant factors under the Family Law Act.

If you are concerned that the other parent may relocate with your child without consent, or if you are considering relocation yourself, we recommend seeking urgent advice from our child relocation experts.

Time Arrangements for Grandparents and Other Family Members

It is a common misconception that only parents can apply to the Federal Circuit and Family Court of Australia to spend time with a child.

The Family Law Act recognises that children have the right to maintain relationships not only with their parents, but also with grandparents and other significant people involved in their care, welfare, and development.

If you are concerned about maintaining a meaningful relationship with a child, or believe a child’s welfare is at risk, our parenting arrangement experts can advise you on the legal options available.

Child Abduction

In some cases, a parent may remove a child from the care of the other parent and relocate to another city, state, or even overseas.

If a child has been unlawfully removed from Australia, the matter may fall under the Hague Convention on the Civil Aspects of International Child Abduction. Our parenting arrangement experts can advise you on the steps to seek the child’s return.

While our priority is to help resolve such disputes through negotiation, our team is highly experienced in representing parents in urgent court proceedings where a child’s return is sought.

If you are concerned that a parent may remove a child, or has already done so, we recommend seeking urgent legal advice. You can also follow the link below to determine whether the country involved is a signatory to the Hague Convention.

Don’t take the risk of handling your family law property settlement on your own. It is important to obtain expert property settlement advice from one of our experienced family lawyers rather than relying on well-meaning friends or family.

The law relating to financial and property settlements is complex. Our Family Law team provides clear, practical advice based on extensive experience successfully assisting clients through their property settlement matters.

Formalising Property Settlements

When parties reach an agreement, there are two main ways to formalise a property settlement:

• Consent Orders

• Binding Financial Agreements (BFA)

Consent Orders

Consent Orders are written agreements approved by the Court, making the terms legally binding.

If your matter is already before the Court, the agreed terms can be submitted as Consent Orders without needing to file a separate application.

Consent Orders are generally a cost-effective and efficient way to finalise property settlements. Our team can assist in preparing and filing the necessary documents with the Court to ensure your settlement is legally binding.

Binding Financial Agreements

A Binding Financial Agreement (BFA) is a private contract between the parties that sets out how assets, liabilities, and financial resources will be divided.

Unlike Consent Orders, a BFA is not filed with the Court. However, strict legal requirements apply — both parties must obtain independent legal advice regarding the effect of the agreement and its advantages and disadvantages before signing.

Our property settlement lawyers can advise whether a BFA is suitable for your situation and assist in drafting or reviewing the agreement to ensure your interests are protected.

Court Proceedings

If parties are unable to reach an agreement about their property settlement, our team can assist and represent you through the Family Law Courts process.

We are experienced in managing property settlement litigation and can provide strategic advice and representation to help you achieve the best possible outcome.

It is essential to obtain legal advice from our surrogacy experts before entering into a surrogacy arrangement.

Surrogacy law in Queensland is complex and governed by the Surrogacy Act 2010 (Qld). Understanding your rights and obligations before proceeding is crucial, as serious legal and practical implications may arise if requirements are not met.

Key Legal Principles

1. Commercial surrogacy is illegal in Queensland.
   This means a surrogate mother cannot receive payment or compensation for acting as a surrogate, other than reimbursement for reasonable medical, legal, and counselling expenses.

2. Altruistic surrogacy is permitted.
   In altruistic surrogacy arrangements, the surrogate mother receives no financial reward. These arrangements are legal in Queensland provided all legislative requirements are satisfied.

3. Surrogacy arrangements cannot be enforced.
   Even when all parties enter into a written surrogacy agreement, it is not legally enforceable. This means that either party may choose not to proceed at any stage prior to the transfer of parentage.

Requirements for a Surrogacy Arrangement

To enter into a surrogacy arrangement in Queensland, the following conditions must be met:

1. The surrogate mother and the intended parent(s) must each be at least 25 years of age.

2. All parties to the surrogacy arrangement must obtain independent legal advice before entering into the agreement.

3. All parties must also participate in counselling prior to entering into the arrangement.

How We Can Help

Our surrogacy experts can provide advice regarding your legal rights and responsibilities under Queensland law. We can assist in:

• Preparing and reviewing surrogacy agreements;

• Ensuring all legal and counselling requirements are met; and

• Guiding you through the process of applying for a parentage order following the birth of the child.

If you are considering entering into a surrogacy arrangement, contact our surrogacy experts today for confidential, compassionate, and practical legal advice.

Under the Family Law Act 1975 (Cth), same sex couples are treated in the same way as heterosexual couples.

This means that if you separate from your same sex partner, the same laws apply to you in relation to property settlements, parenting arrangements, and other family law matters.

Our experienced family lawyers provide compassionate, respectful, and confidential advice tailored to your circumstances. We understand that every relationship and separation is unique, and we are committed to helping you navigate your matter with sensitivity and clarity.

If you have recently separated from your same sex partner or are considering separation, we encourage you to contact our family law experts for confidential advice. Please click the link below to arrange an appointment with one of our experienced family lawyers.

What is Mediation and Family Dispute Resolution?

Mediation, also known as Family Dispute Resolution (FDR), is an effective way to resolve parenting or property settlement matters without going to court.

Mediation involves an independent mediator or Family Dispute Resolution practitioner assisting the parties, often with the support of their legal representatives, to reach mutually acceptable agreements regarding parenting or property disputes.

By resolving disputes at a mediation or FDR conference, parties can formalise the agreement through Consent Orders, which are legally binding on both parties. Achieving a resolution at this stage allows you to finalise your matter while avoiding the significant delays and legal costs associated with court proceedings.

Legal Requirement to Attend Mediation

Under the Family Law Act 1975 (Cth), parties are generally required to attend mediation or a Family Dispute Resolution conference before applying to the Court for parenting or property orders.

If mediation or FDR does not result in an agreement, the mediator or practitioner will provide the parties with a certificate. This certificate allows the parties to then make an application to the Court for parenting or property settlement orders.

How We Can Help

Our family law experts can guide you through every step of the mediation or FDR process, including:

• Providing advice and strategies before the mediation;

• Representing you during the mediation or FDR conference; and

• Preparing Consent Orders to formalise any agreement reached.

We strongly recommend contacting our family law experts for advice and representation to ensure your interests are protected throughout the mediation or Family Dispute Resolution process.

When Can You Apply for Divorce?

To apply for divorce in Australia, you must have been separated for at least 12 months, with no reasonable likelihood of resuming the relationship. This is known as the irretrievable breakdown of the marriage, which is the only ground for divorce under Australian law.

If you and your spouse have lived under the same roof during the separation or had periods of reconciliation, we strongly recommend seeking legal advice. These circumstances can affect your eligibility to file an Application for Divorce and may require additional evidence.

Who Can File a Divorce Application?

There are two types of divorce applications that can be filed in the Federal Circuit and Family Court of Australia:

• Sole Application for Divorce

• Joint Application for Divorce

How Does Divorce Affect Property Settlement?

Once your divorce is finalised, you have 12 months from the date of the Divorce Order to commence court proceedings for property settlement. If this deadline is missed, you must apply for special permission (leave) to proceed out of time, which can be complex and may not always be granted.

To avoid unnecessary legal costs and complications, we recommend addressing property and financial matters as soon as possible — ideally before or during the divorce process.

How Does Divorce Impact My Spouse Making a Claim Against My Estate?

Once the Court has made a divorce order, it generally prevents your former spouse from making a claim against your estate after your passing.

If you are considering applying for divorce, we recommend contacting our divorce experts for confidential advice.

Under Queensland law, domestic violence is not limited to physical abuse. It includes a broad range of behaviours that cause fear, intimidation, or harm. These may include:

• Emotional or psychological abuse

• Physical or sexual abuse

• Economic abuse

• Threatening, coercive, or controlling behaviour that causes a person to fear for their safety, wellbeing, or the safety of another

If you are experiencing any of these behaviours, it is important to seek legal advice as soon as possible.

Applying for a Domestic Violence Protection Order

A Protection Order can be applied for in the Magistrates Court by anyone experiencing domestic violence. Our team can assist you with:

• Preparing and filing the application

• Identifying the most appropriate protection conditions

• Representing you in Court

To successfully obtain a Protection Order, you must demonstrate:

• A relevant relationship (e.g., spouse, partner, relative, or informal care relationship)

• That domestic violence has occurred

• That a Protection Order is necessary or desirable to protect you in the future

Even if there has been a relationship and past acts of domestic violence, the Court will not automatically grant an order — you must demonstrate the need for future protection.

Once your matter is before the Court, the possible outcomes include:

• The respondent contests the application, and the matter proceeds to trial

• The respondent offers an undertaking (a written promise to stop certain behaviour)

• The respondent consents without admissions to a Protection Order

Responding to a Protection Order Application

If you have been served with an Application for a Protection Order or a Police Protection Notice, it is essential to seek legal advice immediately.

You may be named as a respondent in two main ways:

• A private application, filed by an individual (e.g., former partner)

• A police application, initiated by Queensland Police

Police may:

• File an application for a Protection Order in the Magistrates Court, or

• Issue a Police Protection Notice, which provides immediate short-term protection

On the first Court date, you will be asked whether you agree to or contest the application. Possible outcomes include:

• You contest the application, and the matter proceeds to trial

• You provide an undertaking

• You consent without admissions to a Protection Order

Our lawyers can advise you on the best course of action, taking into account your circumstances and the risks involved.

What Is an Undertaking?

An undertaking is a formal, written promise made by the respondent to do, or refrain from doing, certain acts — usually the same as those that would appear in a Protection Order.

If accepted by the applicant, the application for a Protection Order may be withdrawn. It is important to note that:

• An undertaking is not enforceable by police

• Breaching an undertaking is not a criminal offence

• It does not carry the legal weight of a Court Order

We can assist you in negotiating and drafting an undertaking if appropriate.

What Does It Mean to Consent Without Admissions?

When a respondent consents without admissions, they agree to the Protection Order being made without admitting any of the allegations. The Order will contain conditions the respondent must follow and may remain in force for up to five years, unless otherwise ordered by the Court.

This option can provide a practical resolution to Court proceedings while protecting the respondent’s position in related legal matters (e.g., parenting disputes).

Our lawyers will assess your case and help you decide whether this option is in your best interests.

If you are experiencing domestic violence and wish to file an Application for a Protection Order, or if you have been served with one, we recommend seeking urgent legal advice.

Child Support Obligations After Separation

When parents separate, they both remain legally responsible for the financial support of their children.

Disputes or uncertainties regarding child support are governed by the Child Support (Assessment) Act 1989 (CSSA).

Under the CSSA, separated parents can manage child support in two main ways:

• Entering into a Child Support Agreement

• Applying for an Administrative Assessment through Services Australia – Child Support Agency (CSA)

Child Support Agreements: Limited vs Binding

There are two types of Child Support Agreements that parents can enter into:

• Limited Child Support Agreements

• Binding Child Support Agreements

Both types allow for more flexible and tailored arrangements than a standard assessment but differ in enforceability, formality, and legal requirements.

Limited Child Support Agreements

A Limited Child Support Agreement is a more flexible and informal option that does not require legal advice from either party. To be valid, the agreement must:

• Be in writing and signed by both parents

• Be registered with the Child Support Agency

• Be accompanied by a child support assessment from Services Australia that is equal to or greater than the agreed amount

Key features of a Limited Agreement:

• Can be varied or terminated by one party if there is a significant change in circumstances

• May be unilaterally terminated after three years by giving written notice to the CSA

This type of agreement is often suitable when parents can cooperate and want the ability to review or change arrangements more easily in the future.

Binding Child Support Agreements

A Binding Child Support Agreement offers a higher level of certainty and enforceability and is suitable for parents seeking a more formal and final arrangement.

To be valid, both parents must:

• Obtain independent legal advice before signing

• Provide a certificate of legal advice confirming that advice was received

• Meet strict formal requirements

What can be included in a Binding Child Support Agreement:

• Periodic payments (regular weekly or monthly support)

• Adjusted rates of child support

• Non-periodic expenses such as school fees, medical costs, or extracurricular activities

• Lump sum payments, which can be credited against future child support liability

Binding Child Support Agreements remain in place unless set aside by a Court in limited circumstances, such as fraud, duress, or a significant change in circumstances causing undue hardship.

Which Child Support Agreement Is Right for You?

Choosing between a Limited and Binding Child Support Agreement depends on several factors, including:

• The level of cooperation between parents

• Long-term financial circumstances

• The need for enforceability

At your initial consultation, our Family Law team will:

• Assess your situation

• Explain your child support options in plain language

• Help you determine the most suitable agreement

• Draft and review agreements to ensure compliance with legal requirements

If you are considering entering into a Child Support Agreement, we recommend obtaining advice from our child support experts before proceeding.