Expert Child Custody Lawyers for Parenting Orders

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How is child custody determined when you separate?

The breakdown of a marriage or de facto relationship separation 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.

We can also advise on and draft a binding financial agreement to formalise your property and financial arrangements, and our property settlement lawyers can guide you through dividing assets fairly after separation. 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. Our experienced child support lawyer can help you draft and negotiate a binding 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

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?

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.

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.