Child Custody Lawyers

When making parenting arrangements for your children, you need to consider family law legislation and the way that the Family Court approaches parenting disputes. This is true regardless of whether your parenting matter goes to Court or not.

The Court always approaches parenting matters by:

• applying the presumption that the “best interests of a child” is the most important consideration
• recognising that each parent has parental responsibility towards their children (which is generally shared equally, unless there are reasonable grounds to believe a parent of the child has engaged in family violence or abused the child.)

The best interests of the child are, at all times, the most important consideration of the Court.

When determining what a child’s best interest are, the Court considers the things set out in section 60CC of the Family Law Act 1975.

Equal shared parental responsibility means both parents of a child under the age of 18 years old have a role in making decisions about major long-term issues that affect the child.

Equal shared parental responsibility does not necessarily mean equal time care arrangements.

In Australia, it is presumed that each parent has equal shared responsibility. This presumption encourages parents to co-parent cooperatively and consult with each other when making any major long-term decisions about a child. For example, if a child is sick and in need of medical treatment, the parent who has the child in their care must consult the other parent before making any decision about the treatment.

Equal shared parental responsibility does not include the parents consulting about the day to day parenting issues.

Until Orders are made by the Court or by consent, it is presumed that both parents have equal shared parental responsibility unless in certain circumstances, e.g. where there has been family violence.

Negotiation

Negotiations about parenting matters can happen between you and your former spouse or de facto partner directly. If you have legal representation, your lawyers can handle negotiations.

Negotiations can happen in writing, verbally or, where appropriate, in person.

If you are having trouble reaching an agreement in relation to parenting matters, we recommend you get independent legal advice to assist in your negotiations. It is better for everyone – especially the children – to reach an agreement rather than commence Court proceedings.

Family Dispute Resolution

Family Dispute Resolution (FDR) is another term for mediation. It involves discussions between the parties and a jointly appointed FDR Practitioner – with or without legal representatives present.

An FDR Practitioner is usually a senior member of the legal profession, who may be a social worker, ex-Family Law Judge, barrister or solicitor. The role of the FDR Practitioner is to assist you and your former spouse or de facto partner to reach common ground about parenting matters and reach an agreement which can be formalised.

If no agreement can be reached at FDR, the FDR Practitioner will issue a Section 60I Certificate.

The Section 60I Certificate allows you to commence proceedings in Court. It confirms you and your former spouse or de facto partner did attend, or attempted to attend, the FDR to resolve your parenting matter. An FDR Practitioner will also issue this certificate if either party was formally invited to attend the FDR but refused or failed to attend.

After separation or divorce, it is important that your child or children are cared for and supported.

If the parents reach an agreement, that agreement can be formalised by:

1. Parenting Plan; or
2. Consent Orders.

While it not a requirement it is important that each party has received independent legal advice from an experience child custody lawyer before signing any documents in relation to parenting matters.

Parenting plans

If an agreement can be reached, you may enter into a Parenting Plan. This document is any written, signed and dated agreement made between parents. This can be made before either party obtains legal representation.

Some of the issues that a Parenting Plan may cover are:

• who has parental responsibility?
• who the child will live with and who they will spend time with?
• details of what communication the child will have with both parents when in the other parent’s care.
• what processes are in place to resolve any future disputes about the child.
• what processes are in place to change the plan in the future if circumstances change.
• any other aspect of the care, welfare and development of the child.

A Parenting Plan is not legally binding or enforceable, but it does allow you and the other parent to be flexible if circumstances change.

The Court will consider the terms of the Parenting Plan if proceedings are commenced, but they will ultimately make a decision based on the best interests of the child.

The risk of entering into a Parenting Plan is that you will not be able to bring contravention proceedings if one party does not comply with the terms of the agreement.

Unless you and your former spouse or de facto partner are amicable and have a strong basis of trust, then we recommend you enter into Consent Orders over a Parenting Plan.

Consent Orders

If you and your former spouse or de facto partner want to make your agreement about parenting matters legally binding, we recommend you enter into Consent Orders.

To get Consent Orders, you and your former spouse or de facto partner do not need to attend Court.

You will, however, need to file the following documents with the Family Court of Australia:

• Minute of Orders, signed by both parties to the agreement; and
• Application for Consent Orders.

Once filed, the Registrar of the Family Court of Australia will review the terms of the Orders. If they are considered appropriate and in the best interests of the child, the Court will seal them and the Orders will become final. Once final, the Orders are legally binding and enforceable.

Once final Parenting Orders have been made, the only way to amend or vary the Orders is if the Court is convinced there has been a significant change in circumstances that warrant revisiting the Orders previously made.

The benefit of entering into Consent Orders is their enforceability – a contravention application can be made if either of you do not comply with the Orders.

The risk of entering into Consent Orders is that if any amendments are required in the future, you’ll need to satisfy the Court that there has been a significant change in circumstances that require the Orders to be changed. This can be difficult and costly.