Parenting orders and child custody

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How is child custody determined when you separate?

The breakdown of a relationship is an extremely stressful and difficult time and your children are your priority. Trying to reach agreement on child custody is for many the most important aspect of their separation.

There are many unanswered questions- who will the children live with? How often will each parent see the children? Who will make decisions about the children’s welfare?

Understandably, these questions are distressing for most parents going through a separation, so having the help and guidance of a trusted and experienced child custody lawyers can make the process significantly less stressful and easier to navigate. Lawpoint can help guide you through the process, negotiate and secure parenting orders. Learn about Lawpoint’s team, read our plethora of positive client reviews and contact Lawpoint today for advice.

Can I get “custody” of the children?

The term “custody” is no longer used in the family law system. Instead, the Court now deals with who the child “lives with” and how much time they will “spend with” and “communicate with” the other parent.

The most important factor that the Court must consider when deciding who a child lives with is what is in the best interests of the child.

The law is designed from a starting point that every child has a right to know both their parents. Equally, every child has the right to be protected from harm. Unless there are issues with violence or abuse, the law expects that each parent with have equal parental responsibility.

This doesn’t mean that each parent gets to spend equal time with the child. Instead, it refers to parents having an equal role in the long term important decisions affecting a child, such as where they go to school, or what medical treatment they receive. Day to day decisions, such as what will the child eat or can the child go to the park to play with friends are decisions left up to the parent with whom the child is spending time on a day to day basis.

If the child spending equal time with each of parent is reasonably practicable, and in the best interests of the child, then then the Court will try and make orders that are consistent with that.

However, the reality is that often equal time is not practical, especially with young children because constant changeovers from one parent’s house to another’s causes disruption to the children. There are many other considerations that affect whether equal time is practicable such as how far apart will each parent live? Does one parent have work commitments which make equal time impractical? How well do the parents get along and communicate with one another?

If it is not reasonably practicable for a child to spend equal time with each parent, the next question to decide is whether it is practical for the child to spend substantial and significant time with the other parent. Again, this must be in the best interests of the child.

Making an agreement on parenting arrangements after separation

Arrangements relating to children can come about in different ways. For example, they can be an informal agreement between you and the other parent as to who the children will live with and who they will spend time with. If you can reach an agreement informally, there does not need to be any involvement of the Court.

However, parties will generally put that agreement in writing and sign it. These informal agreements are known as parenting plans. Parenting plans must be signed by both parents. A parenting plan can also include third parties such as grandparents, if the children are to spend time with those persons as well.

It is very important to remember that a parenting plan is not legally enforceable. Although a Court must consider the most recent parenting plan if the matter does get to court (if it is in the best interests of the child to do so) the Court does not have to make orders that reflect that plan. If a parent breaches a parenting plan, the Court does not have the power to enforce the plan as it does with court orders.

The reality however is that many people cannot reach an informal agreement after separation and an agreement comes about after negotiation once each party has appointed a child custody lawyer. Those agreements are known as consent orders. Once signed, they are lodged with the Court for approval and once approved, they become legally enforceable Court orders just like any other court order.

The Court is not obligated to approve these consent orders, even if parties agree. The Court must still be satisfied that the orders are in the best interests of the child.

What are the types of things we can agree on?

The usual matters that parents will agree on in a parenting plan or consent orders dealing with child custody are:

The parent with whom the children will live most of the time.
The time the children are to spend with another person.
The allocation of parental responsibility for the children.
If both parents are to share responsibility, the form of consultations that the parents are to have with each other about decisions to be made in the exercise of that responsibility.
The communication that children will have with the other parent when they are not spending time with that parent.
The process to be used for resolving disputes about the terms of the parenting agreement.
The process to be used in changing the parenting agreement.
Any aspect of the care, welfare or development of the children or any other aspect of parental responsibility the children.

What happens if you cannot agree on parenting arrangements after separation?

In the case where no agreement can be reached, one party will make an application to the Court and the Court will decide what the parenting orders should be, taking into account the best interests of the children.

It is important to remember that the Court requires separating families who have a dispute about children to make a genuine effort to try and reach agreement through family dispute resolution before an application is filed with the Court, unless an exemption applies (such as family violence, child abuse or there is an urgent need to file the application).

There are practical benefits of trying to reach an agreement without going to court such as avoiding the stress associated with court proceedings, resolving the dispute quickly and avoiding the costs of a contested court application. The prospects of reaching such an agreement are increased with the assistance and sound advice of an experienced and trusted child custody lawyer.

Financial responsibility for children

Both parents have a responsibility and a duty to continue to financially support their children after they separate, even if the children are spending more or most of their time with the other parent. This is commonly known as child support.

Parents are able to reach their own agreement in relation to this financial support which is then formalised by way of a child support agreement. If parents cannot reach agreement, either parent can apply for a child support assessment from the Department of Human Services.

You can read more about child support here.

Parental alienation

Separation and the breakdown of a family unit is a very stressful time for both parents and for children. In some cases, children may independently decide that they do not wish to spend time with one of the parents. This can happen for a number of reasons related to the complex family dynamics of individual families and may be unrelated to any conduct of the other parent.

However, in some cases, one parent may criticise the other parent in the presence of the children on a regular basis, which in turn causes children to avoid spending time with the other parent. In extreme cases, a parent may actively manipulate children to avoid spending time with the other parent or simply refuse to facilitate that time. These extreme cases are known as parental alienation.

There are some cases where a parent legitimately seeks for restrict a child’s contact with the other parent. These cases most commonly involve family violence or other abuse, which pose a risk to the child.

It is important that parents do not engage any parental alienation behaviour, which can have significant negative long term consequences for children. It can also lead to serious consequences for the parent.

One of the factors which the Court must take into account is the extent to which each of the child’s parents has facilitated or failed to facilitate the other parent participating in decision making regarding the major long term issues in relation to the child, spending time with the child and communicating with the child. Where a parent has engaged in parental alienation, this will be a factor that the Court may rely on as warranting orders restricting that parent’s time with the child.

If you are experiencing parental alienation, our experienced child custody lawyers can help you to re-establish a meaningful relationship with your children, including by seeking urgent orders for the children to spend time with you.

What other factors will the court consider in making parenting orders after separation?

In determining what living arrangements are in the best interests of a child, the Court will consider numerous factors, including:

Who the child has a primary attachment to as their primary carer.
How old the child is and their level of maturity.
The nature of the relationship between each parent and the child.
How well each parent is able to provide for the child’s day to day and long term needs.
Depending on the age of a child, the wishes of that child.
Any risk factors, including any risk of family violence or child abuse.
Any other matter that the Court deems relevant.

Contact Lawpoint’s child custody lawyers.

The law relating to parenting after separation is complicated and can be applied in different ways depending on the complex family dynamics that exist in each individual case.

Lawpoint’s team of dedicated child custody lawyers understand how important it is to protect your rights as a parent. Our family law lawyers can guide you through this complicated and emotionally charged time to ensure that your rights and the rights of your children are protected. Contact Lawpoint today.

Common questions answered by our child custody lawyer

There are many unanswered questions- who will the children live with? How often will each parent see the children? Who will make decisions about the children’s welfare?

In our initial meetings with clients, we are often asked the same questions because the issues that cause people the most stress following separation tend to be the same. This e-book captures those questions and provides you with the answers we know you’re looking for.

In reading this e-book, you will get a general overview of the family law system relating to child custody matters. You will also get a better understanding of the processes involved and the issues which you might have to deal with.

It should not be relied upon as legal advice or as a substitute for legal advice. If you want advice specific to your circumstances, please contact Lawpoint to arrange an appointment.

What happens if my child does not want to spend time with the other parent?

Sometimes, a child will express the wish that they do not want to spend time with the other parent, or do not want to spend as much time with that parent as the parent might like. It is well established that the opinion of the children is not the overriding reason to prevent a parent from spending time with their children. It is not for children to decide whether they do or do not want to spend time with their parents.

Instead, the answer to this question will depend on numerous factors, the most important of which will be the reason why thy child is expressing that view.

If, for example, the child is expressing that view because the child is subject to family violence (which includes both physical and verbal violence) or child abuse, this will be a powerful factor in whether the Court determines that the child should not spend time with the other parent because it is not in the child’s best interests to do so.

If however the child is expressing that view because a parent is denigrating the other parent regularly in the presence of the child and the child has formed a negative view of the other parent as result, this will not be a legitimate reason for the Court to restrict the other parent’s time with the child.

Contravening Court orders is a very serious matter and so you should not prevent the other parent from spending time with the child unless there are very good reasons for doing so. Our experienced family lawyers can give you advice as to whether you have a reasonable and justifiable basis for doing so.

Do I need my partner’s consent to relocate with our children?

In some cases, you will require consent and in other cases you will not depending on your specific circumstances.

If you plan to relocate to a new residence that is not a long distance from your existing residence, even though this may be inconvenient for the other parent, if it does not impact on other aspects of the child’s life such as schooling or on the time that the other parent spends with the child, you are unlikely to require the other party’s consent.

However, if you intend to move overseas, interstate or a long distance away, which in turn negatively affects the other parent’s time with the child or which will result in a contravention of Court orders, you will either need the other parent’s consent or an order of the Court before you relocate.

The same test is applied by the Court in relocation cases as is applied in respect of parenting matters generally; is it in the best interests of the child for you to relocate as planned?

What you will need to establish is that the child’s interests and needs will be better met by the relocation. One of the main concerns for the Court is ensuring the child maintains a meaningful relationship with both parents.

The Court will consider all options, and may for example, allow you to relocate and make orders relating to the time the other parent spends with the child or may order that the child instead live with the other parent (and therefore not relocate even though you are relocating) and make orders relating to the time you will spend with the child.

What can I do if I am concerned that the other parent may take my child overseas without my consent?

If you do not consent to the other parent taking your child overseas, the other parent will need a Court order to do so (assuming that there are no existing orders in place permitting this).

From a practical point of view, both parties must sign a passport application for a child, so you can simply refuse to sign the application for a passport, which will practically prevent international travel by your child. You can also lodge a Child Alert Request at any Australian Passport Office.

However, in many instances, the child may already have a passport. If you hold a genuine concern that the other parent may take your child overseas without your consent and worse still, relocate overseas permanently with the child, our experienced family lawyers can apply to have your child listed on the Australian Federal Police “airport watch list”.

Once on the list, it will not be possible to remove the child from Australia. If the other parent attempts to leave Australia with the child, the AFP will be notified and the child will be prevented from leaving Australia without a Court order permitting it.

Do I need the other parent’s consent to change our child’s school?

Unless there is an order in place giving you sole parental responsibility for the long term important decisions affecting your child (including schooling), then you will need the consent of the other parent to change your child’s school because parents share responsibility for these decisions.

You are required to consult with the other parent and make a genuine effort to reach a mutual decision in relation to schooling. Sometimes, mediation can assist the parents to reach an agreed position.

If you cannot agree, you can apply to the Court for an order permitting you to enrol the child in the school of your choice. The Court may or may not grant this request and may do so with or without conditions.

I don’t like the other parent’s new partner. Can I stop them spending time with my child?

In short, no, not unless there is a legitimate reason why doing so would not be in the best interests of the child.

Just because you do not get on well with the other parent’s new partner, does not mean that you can prevent them from spending time with your child. Part of the expectation that parents must focus on the best interests of the child and promote a meaningful relationship with both parents, is that they must recognise the reality that one or both parents may re-partner and promote the relationship with that new partner and the new family unit.

However, there may be circumstances where your concerns are legitimate. For example, where the other parent’s new partner has a history of domestic abuse, is a drug user or is engaging in conduct which exposes your child to abuse, neglect or other harm. Where it can be shown that it is not in the best interests of the child to be in the presence of that person, the Court may make an order preventing that person from spending time with the child or by putting protective measures in place such as supervision orders.

It is important to note that the onus of proving such allegations rests on the parent making them. It will not be enough to simply make such allegations. You must have sufficient evidence to convince the Court that your allegations are true.

Is the law biased against fathers?

The short answer to this question is no. The Family Law Act 1975 does not permit the Court to discriminate against fathers. In reality, mothers often obtain orders that are more favourable because prior to the Court process, the mother was the primary caregiver for the child and therefore the Court deems that it is in the child’s best interests for that primary caregiving relationship to remain in place.

Where the father has had a significant role in the child’s life prior to the Court process, the Court is likely to maintain that involvement, unless it is not in the best interests of the child to do so.

What is family dispute resolution?

Family dispute resolution is a confidential process whereby a trained Family Dispute Resolution Practitioner independently attempts to help parents navigate disputes and reach agreement on child custody arrangements.

The law requires parents who have a dispute about child custody and related parenting issues to make a genuine effort to try to and reach agreement via family dispute resolution before filing an application for parenting orders in Court.

This requirement applies any parent wanting to file an application with the Court, unless there is a permitted exception.

Section 60I(9) of the Family Law Act lists the exceptions to the requirement to attempt family dispute resolution before making an application. Examples of exceptions are:

where a person is applying for procedural orders, interim orders or consent orders.
where the matter is urgent.
if the court has reasonable grounds to believe that:
- family violence or child abuse has occurred, or
- there is a risk of violence or child abuse if there was to be a delay

Unless one of the permitted exemptions applies, a party wishing to apply to the Court must file a certificate from a family dispute resolution practitioner. The certificate is issued under Section 60I of the Family Law Act 1975 and is commonly known as a Section 60I Certificate.

Anything that is said during family dispute resolution conducted by an accredited FDR practitioner, is confidential and is not admissible in any Court proceedings. This allows parents to openly and honestly discuss all issues relevant to the dispute, without the threat that something they say may later be used against them in Court.

Do I need a child custody lawyer?

Strictly speaking, no. But our experienced child custody lawyers have extensive experience in matters like yours and can give you advice on the best way to achieve the outcomes you are looking for.

We can also provide you with practical advice on how to resolve disputes so as to avoid the stress and cost of the Court process. We work with you to try and resolve your dispute by negotiation, as quickly and as cheaply as possible.

Where an agreement is not possible and Court proceedings are unavoidable, we utilise our extensive experience to present your case to the Court in the best possible way to obtain the orders you seek.

Throughout this process, we treat you with respect, dignity and empathy because we understand just how stressful family law proceedings can be.

How much will it cost to engage a child custody lawyer?

The cost will depend on the lawyer you engage. Different lawyers have different hourly rates, depending on their level of experience. Lawyers with the same levels of experience can also charge significantly different hourly rates. More expensive is not necessarily better.

You should ask questions of your lawyer so that you understand exactly what costs will be involved and what their level of experience is, especially in matters similar to yours.

Our family law solicitors have extensive experience in all aspects of family law including child custody matters. We offer an initial free telephone consultation to allow you to ask questions and get to know us a little better.

Every family law matter is different and therefore each matter will have different legal costs depending on the specific circumstances of each case. Matters than can be resolved through negotiation will have much lower costs than those that require court proceedings to be commenced.

Although we don’t provide a guaranteed quote for family law matters, we are able to give you a fee estimate as part of our fee agreement. This estimate is based on a number of factors, including the instructions you provide us about your circumstances and what you are hoping to achieve. This way you have clear, upfront estimates of the costs that you are likely to incur.

Our approach to legal costs is that we provide high quality family law advice as cost effectively as possible. Our aim is to help you avoid the costs of Court proceedings so we focus heavily on a negotiated resolution that still achieves the outcomes that you seek.

Why choose Lawpoint?

Clear Communication

Expect lawyers who speak in plain English, so you can make informed decisions about the future of yourself and your children.

Care

We aim to make the legal process seamless for families. Our offices have a dedicated play area for your children, so you can seek legal advice with comfort.

Determination

We will not disclose confidential information or make any agreements with your partner or their lawyer unless you have clearly agreed to it first.

Efficiency

We take a 360-degree transparent approach to our services. We are accountable to our clients and always provide costs agreements.  

Integrity

We fight determinedly for all of our clients. No matter is too big or too small. We have an extensive network of like-minded barristers who we can call on when required.