Children’s Matters

Emerson Family Law Expertise

Dedicated Child Custody Lawyers Based in Brisbane.

When you separate, you and your former partner need to make important decisions about the future care of your children as well as how to divide your property, money and belongings. Working through these issues is often difficult and emotionally challenging, which is why it can be beneficial to choose child custody lawyers that have the knowledge and skill needed to appropriately handle the case in your best interests.

Our Guiding Philosophy as Custody Lawyers

Separation can also be a stressful time for your children and as family lawyers, we must encourage parties to negotiate in a manner and arrive at arrangements which cause minimal upheaval to their children. To ensure that the agreement you reach is the best possible one for your circumstances, our Brisbane based solicitors are guided by the following principles when dealing with children’s matters:

  • The need to protect and safeguard the interests of children.
  • The importance of a continuing relationship between children and both parents, and the benefits.
  • The child gains from the parents cooperating with one another.
  • The potential damage to a child involved in a dispute, particularly if they are encouraged to take sides or take part in any dispute between the parents.
  • The importance of identifying issues early and exploring options for settlement.
  • The need to avoid protracted, unnecessary, hostile and inflammatory exchanges.
  • The impact of correspondence (emails, letters, SMS etc) on the reader, particularly on the other party in the case.
  • The need to seek only those orders that are realistic and reasonable on the evidence and that are consistent with current law.

Other Issues Related to Family Law Cases

Equal Shared Parental Responsibility ≠ Equal Time

  • Since 1 July 2006, the Family Law Act has been amended to provide that there is a presumption of equal shared parental responsibility. This presumption can only be displaced in limited circumstances including where there are instances of family violence or child abuse. Equal Shared Parental Responsibility relates to major long–term decisions for children for e.g. a child’s name, religion, schools etc.
  • Provided that the presumption is not displaced, the Court must consider an Order where the child will spend equal time with each parent. Where equal time is not appropriate, the court will assess how the child may spend “significant or substantial” time with each parent.
  • So long as they are able to have a meaningful relationship with both parents, and the need to protect them from emotional and/or psychological harm is addressed, the courts will assess any proposal against what would be in that particular child’s best interests.
  • A number of factors are set out in the Family Law Act which help the Court determine what is in a child’s best interest. Specific issues the courts will consider in determining a child’s best interests are contained in s60CC of the Family Law Act 1975 (Cth).

Under the Family Law Act 1975 (Cth) parties in Brisbane are required to take certain steps before they can file proceedings in the Family Law Courts. Unless there are some vitiating circumstances, parties must attend mediation or Family Dispute Resolution in an attempt to resolve matters out of court.

In the event the parties successfully reach agreement at mediation, then such agreement can be formalised in one of two ways – a Parenting Plan or Consent Orders (see below).

In the event the parties are unable to resolve their dispute, the mediator/Family Dispute Resolution Practitioner will issue them with a s60I Certificate. This certificate enables the parties to file proceedings in either the Federal Circuit Court of Australia or Family Court of Australia in relation to children’s issues.

Whilst out of court settlements are always to be encouraged, the law recognises that there will be circumstances where mediation will not be appropriate:

  • Where you are responding to an application;
  • Where the matter is very urgent;
  • Where you are unable to participate effectively in Dispute Resolution;
  • Where there has been child abuse or family violence;
  • Where there is the risk of child abuse or family violence; and
  • Where your application concerns contravention of a parenting order that was made less than 12 months ago and alleges behaviour that shows a serious disregard of obligations under that order.

If you consider that you fall within one or more of these categories, you should seek our advice in relation to filing an Initiating Application without a s60I Certificate.Contact our child custody lawyers in Brisbane for professional information on how to begin the negotiation process.

There are circumstances where children are wrongfully removed from their place of primary residence and sometimes without the consent of the other party. Whilst a Court cannot prevent a parent from relocating, it can prevent the parent who has the care of the children from taking the children with them.

The ultimate issue is whether the other parent provides their consent to such relocation.
If there is consent, then parties should take all necessary steps to formalise such agreement as evidence of their intentions.
If there is no consent and the parent with residence of the children still wishes to relocate, an application must be made to the Family Law Courts to enable such relocation.

In determining such matters, the Courts have regard to the following issues: –

  • The paramount principle the Courts will consider is what would be in the child/children’s best interests;
  • The Courts will need to be convinced by the party applying, of compelling reasons for the relocation;
  • The Courts then evaluate each party’s competing proposals. Such exercise is evidence-based however, the Courts also consider the advantages and disadvantages for the children in the context of each party’s proposal and the overall effect on them and their interests; and
  • The Court will consider the distance of the intended relocation and how this impacts on either party’s capacity to relate with the child/children. Travel costs may be the prohibitive factor in this.

This area of law is incredibly complex, which is why our Brisbane based solicitors can be of great assistance. It essentially balances the applying party’s right to move on with their life, form new relationships and have the freedom of movement as against the other parent’s right to have a meaningful relationship with the child/children. The Court will need to be convinced that the applying party will ensure the continuation of the children’s relationship with the non-resident parent.

In some circumstances, it is possible for a parent to apply to the Family Law Courts for a recovery order which, when made, has the effect of empowering the Australian Federal Police to stop and search vehicles, vessels, aircrafts, premises or places where they have reasonable cause to suspect the child may be found. They are further authorised, on discovering the child, to return the child to the applying party.

For the sake of covering all bases, a Commonwealth Information Order should also be applied for in these circumstances. Such an order has the effect of directing delegates of different Commonwealth Departments to provide the Family Law Courts with information pertaining to the whereabouts of the subject child.

There are also situations where children are removed from the care of a parent with the intention to travel with the child outside of the Commonwealth of Australia.

Where this is suspected, it may be possible to place an Airport Watch on the child or children’s names which prevents the abducting party from removing the child from any entry or exit point within the country. Such an order essentially empowers the Australian Federal Police to ensure that the child or children are not successfully removed from Australia.

If the abducting parent has already succeeded in removing the child/children from Australia, the procedure for ensuring the child/children’s return is largely dependent on the country they have been removed to and whether they are signatories to The Hague Convention.

Australia is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction and if the child is removed to another signatory country, the child’s return can be ensured by making an application for return under the terms of the convention. This is done by the exercise of the power of the state Central Authority, which in Brisbane (and throughout Queensland) is the Commonwealth Attorney-General.

There are also ways in which a child can be returned to Australia where they the country they have been removed to is not a signatory. This is effected by retaining family lawyers , specialising in child custody or children’s matters in that country and instructing them to issue recovery proceedings in their jurisdiction.

Another way of pre-emptively ensuring a child is not removed from Australia is to put the passport office on notice. It may be worthwhile to also place the relevant Embassy or High Commission on notice to ensure that a foreign passport is not issued to the child/children who have been removed from Australia.

Whether you suspect your former partner intends to remove a child to another country, or if you yourself intend to relocate overseas with a child, you should seek urgent advice from our expert team of Brisbane family lawyers in relation to the implications arising out of both respective scenarios.

Grandparents are not immune from the impact of separation. When parties separate, re-partner or remarry, there may be changes in the way grandparents interact with their grandchildren.

We have put together some pointers for grandparents who find themselves in this situation.


  • Turn to your support network to work through your own emotions rather than to the grandchildren.
  • Try to keep positive relationships with both parents.
  • Be there for your grandchildren and listen to their feelings.
  • Don’t talk to your grandchildren about your disappointment with their parent(s), but listen to their feelings.
  • Don’t talk to your grandchildren about your disappointment with their parent(s), but listen to their feelings.
  • Don’t talk to your grandchildren about your disappointment with their parent(s), but listen to their feelings.

In 2006, changes were introduced to the Family Law Act to address the common scenario where grandparents are cut out of their grandchildren’s lives after the separation or divorce of the grandchildren’s parents.

It is not always necessary to seek the assistance of the Family Court in order to gain access to, and have a relationship with, your grandchildren.

The Family Law Act promotes the resolution of family law disputes by mediation, which is where the parties sit down with a qualified mediator to attempt to resolve their conflict, and agree on an arrangement that is in the best interests of the child/children.

This early dispute resolution process often results in the parties reaching an agreement whereby grandparents spend time with their grandchildren. This agreement can be included in a Parenting Plan setting out where the child lives and when the child communicates or spends time with their parents and grandparents.

In the event that no agreement is reached at mediation, it may be necessary to make an application to the Family Law Courts seeking an order regarding when you can communicate or spend time with your grandchildren.

The rights of grandparents under the Family Law Act are fairly new, which is why it is best to seek qualified legal advice from experienced family lawyers, specialising in parenting arrangements.Our team in Brisbane will be able to assist you in seeking communication and contact with your grandchildren. Our expert family lawyers can explain the legal process involved in gaining contact with your grandchildren and your rights under the Family Law Act.

The Family Law Act states that children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development, including grandparents.

When determining what is in the best interests of the child, the Court is required to consider the right of the child to spend time with their grandparents.

In addition, when making certain orders concerning what is in the child’s best interests, the court must consider:

  • Other persons including any grandparent;
  • The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from any grandparent with whom they have been living; and
  • The capacity of any other person, including any grandparent, to provide for the needs of the child, including emotional and intellectual needs.

Child Support and Paternity Issues

There are two ways in which separating parents (whether married or de facto) can ensure their child/children’s right to be maintained is provided for:

1. By making an application for Child Support through the Child Support Agency; OR
2. By entering into a binding or non-binding Child Support Agreement.

Child Support Assessment – CSA

On applying to the Child Support Agency, an Assessment Notice setting out a party’s level of obligation/entitlement is issued.
The amount payable/receivable is calculated through a complex internal process governed by the Child Support Act; however, it takes in to account the following sorts of factors:

  • The income of both parents;
  • The number of children;
  • The respective ages of the children; and
  • The number of nights of care that each parent has of the children.

Varying the CSA Assessment

An assessment amount is reviewable if circumstances change. Parties can seek a variation through the Child Support Agency without having to go to Court.

Further information can be gleaned from the Child Support Agency’s website –

Wrongful Denial of Paternity

There may be circumstances where the Child Support Agency (CSA) will not accept your application for child support if you are unable to provide proof of paternity (i.e. proof that the person you are claiming child support from is in fact the father).

In such circumstances you may need to obtain a declaration from the Family Law Courts under section 106A of the Child Support (Assessment) Act 1989 that you are entitled to child support.

If you are receiving social security benefits for the child, Centrelink will require that you take ‘reasonable action’ to get child support or you may lose some of your benefit.

Binding Child Support Agreements

Such agreements can be entered in to by parties wishing to provide over and above any CSA Assessment amount. A Binding Child Support Agreement will allow parties the flexibility as to type of child support to be paid, the amount, and the length of time it is to be paid (among other things).

Common costs parties include in such agreements are expenses such as private school fees, uniforms, text books, and extra-curricular activities.

If you consider that such an agreement is more suited to your children’s needs, our lawyers can assist you in preparing and formalising such an agreement.

Wrongful Child Support Claims

There may also be situations where you might be paying child support for a child/children that are not your biological children.

In such circumstances, it is possible to obtain a declaration/order of the court under Section 107 of the Child Support (Assessment) Act 1989. In doing so, you will be required to prove to the court’s satisfaction that you are not the biological father of the child by producing DNA testing reports issued by an accredited DNA laboratory.

It will not be enough to provide the CSA with a DNA report only. The CSA will only suspend your liability for child support if the court makes a Declaration to end your child support obligation or the mother tells the Agency to end it.

Before starting court action it is always advisable to obtain the parties’ consent to undergo parentage testing. However, time is of the essence in such matters as the time you take to request DNA testing is a factor considered in such court applications.