A Guide to Complex Parenting Litigation

Section 1: What Is Complex Parenting Litigation?

What is Complex Parenting Litigation?

Complex parenting litigation refers to court proceedings in the Federal Circuit and Family Court of Australia which involve competing applications, usually made by parents, seeking the court’s assistance with determining who should have the power to make decisions relating to a child or children, where the children live and who the children spend time with. The complexity often comes about due to factors such as allegations of sexual or physical abuse, parental incarceration, parental mental ill health or substance abuse issues, and children with significant physical or mental ill health.  You can read more about the Federal Circuit and Family Court and how they manage parenting litigation here: https://www.fcfcoa.gov.au/fl/children/overview. 

How is Complex Parenting Litigation different from a regular parenting dispute?

Regular parenting disputes are often negotiated and resolved within therapeutic settings such as mediation or family therapy, where parties can remain child-focused and work together for the best interests of their children; in fact, only about 3% of separated parents use court to resolve parenting matters.  On the other hand, complex parenting litigation requires a Judge to determine the matter because risk or other factors often render it impossible for the parties to negotiate and reach an outcome together. 

What issues and circumstances cause a parenting matter to become complex?

Parenting matters typically become complex when there are allegations of sexual abuse or serious physical abuse, or when a child or parent has a mental or physical health condition that puts the child at risk. Data from the Federal Circuit and Family Court shows that 40% of parenting matters before the court allege mental ill health has caused or poses a risk to a child and 54% allege child abuse.

What does “the best interests of the child” mean under Australian law, and how does a court determine what that looks like in practice?

The best interests of the child is the paramount consideration the court must adopt when making orders about children. In practice, the court is required to consider the following when determining what arrangements reflect a particular child’s best interests:

• What arrangements will promote the safety of the child and those who care for the child.
• What views the child has expressed about their care arrangements and those who care for them.
• What developmental, psychological, emotional and cultural needs the particular child has.
• The capacity each person who is seeking to care for the child has to provide for the child’s needs. 
• The benefit to the child of having a relationship with their parents or other carers.
• Any other circumstance that is relevant to the child in question.

The Family Law Act was significantly amended in May 2024. What changed, and what does that mean for parents in dispute today? 

In 2024, the Family Law Act changed how the courts considered the best interests of children by including specific reference to promoting safety. This shifted the lens to place the consideration of safety of arrangements above all other aspects. Further, the Act was amended to remove the “equal shared parental responsibility” which previously assumed that all children benefit from both parents making long-term decisions, save in some cases. This presumption no longer exists, and instead decision-making relating to long-term aspects impacting a child is considered on a case-by-case basis, in terms of how joint decision-making will promote the safety of the child in question.

What are the most common and consequential mistakes parents make before obtaining legal advice? 

When parents act from a position that lacks education or advice, they often act from a place of fear. They might believe that children must spend equal time with each parent as a starting point or that they are compelled to facilitate a time with a parent even when there are serious allegations of risk. This can mean parents agree to arrangements that do not promote the safety of their children due to a lack of legal advice and an understanding of how risks can be mitigated and safety promoted. 

Section 2: Interstate Parenting – When Parents Live in Different States

How does the family court approach parenting arrangements when parents live in different Australian states?

The Family Law Act 1975 is federal legislation which means that it applies across all Australian states and territories. Therefore, even where parents live in different states, the same law applies to their parenting situation. Research indicates that around 10 – 12% of children in separated families live 500 km or more from their non-resident parent (https://aifs.gov.au/media/news/family-law-reforms-put-childrens-best-interests-front-and-centre). It is therefore not unusual for the court to consider orders for children when one parent lives many hours away, sometimes in another state.

Where this is a factor, the court will need to consider what arrangements will reflect the best interests of that particular child. This means the court will consider the proposed time-sharing arrangements and how they will affect the child’s travel between the parents, whether the arrangements will require the child to miss school or other activities, the child’s age, and any other relevant circumstances.

If one parent wants to move to another state with the children and the other parent objects, what is the legal process for resolving that dispute? 

Moving a child away from one parent to a location that makes time more difficult requires the consent of the other parent or a court order. Failing to obtain these can result in an urgent court application such as a “recovery” order by the other parent who opposes the move. If a parent wants to relocate with the children to another state, they should first seek consent either by lawyer negotiation or mediation. 

If agreement cannot be reached in this way, then an application can be made to the court for an order to relocate. Here the court will then hear the competing evidence and decide whether the relocation reflects the best interests of the children and what time the other parent should have if the move occurs.  

What factors does the court weigh when deciding whether to permit or refuse an interstate relocation with children? 

Relocation matters are very difficult matters for Judges to decide. Often these matters involve loving, engaged parents who would otherwise not be before the court, and both provide the children with stable, happy homes. In these cases, the court must still place the best interests of the children as the paramount consideration, but the exercise of this can be extremely complex. 

The key takeaway in these matters from case law is that parties seeking to relocate do not need to demonstrate compelling reasons for the move, although in most cases they can and do. Further relocations are likely more successful where the children are older and have a well-established relationship with both parents; younger children, however, may find it difficult to develop a relationship where they move away and have less time and cannot enjoy the benefits of modern communication methods like video calls.  

What are the practical and emotional consequences for children in long-distance parenting arrangements, and how should those be addressed in a parenting order?

Children who move away after a relocation is permitted will need to adjust to a new home, school, friends, and a new timetable for spending time with their other parent. The court is required to ensure arrangements reflect the best interests of the child and will consider orders that facilitate the ongoing relationship with the other parent such as:

• Spending more time during school holiday periods.
• Spending one or two weekends during school terms.
• Allowing time to occur in the child’s new home state at any time the other parent chooses to travel there.
• Making orders for phone, video and written communication between the children and other parent. 

Orders such as this can result in children maintaining a strong, loving connection with both parents despite the relocation. 

Section 3: Magellan Matters – Serious Abuse Allegations in the Family Court

What is the Magellan List, and what kinds of cases does it deal with? 

The Magellan List is a specialist court list in Division 1 of the Federal Circuit and Family Court of Australia, managed by a multidisciplinary team of Court Child Experts, Judges, and other Registrars. The list deals with the most vulnerable children where allegations of sexual abuse and serious physical abuse exist.

How does a parenting matter end up in the Magellan List, and what does the process look like once it is listed there? 

Parenting matters transferred into the Magellan List will generally involve notifications or allegations of child sexual abuse, serious physical abuse of a child, fresh allegations of historical abuse that had not been raised before or where a parent or step-parent poses a risk of sexual abuse or they are alleged, charged or convicted of having engaged in the production, possession or distribution of child exploitation material. 

What is a Notice of Child Abuse, Family Violence or Risk, and what happens after one is filed? 

Notice of Child Abuse, Family Violence or Risk is a mandatory form that is completed and filed with the court when commencing proceedings relating to parenting matters. The form is intended to ensure the court is made aware of allegations of abuse or risk as early as possible so the court can report such matters to child welfare authorities and, if necessary, list the matter in a specialised list.   

What role does the Independent Children’s Lawyer play in a Magellan matter, and how does their involvement affect the proceedings? 

An Independent Children’s Lawyer is a lawyer appointed by the court to assist the court determine what arrangements reflect the best interests of the particular child. Although they will speak with the children, they do not act for the children and instead form their own view on what orders should be made. They will often arrange expert evidence from family report writers and assist self-represented parties to negotiate.