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FAMILY LAW

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Parenting Orders & Child Custody

Custody arrangements may be the most difficult aspect to resolve during a separation or divorce.

 

The Family Law Act is underpinned by the principle that ‘the best interests of the child’ is the most important consideration when determining a child’s living arrangements.

 

Our Family Lawyers have extensive experience in resolving all aspects of custody and parenting arrangements, including disputes regarding parenting, access, and visitation rights.

 

Our Family Lawyers offer legal advice and representation to assist you in reaching a meaningful and effective solution in relation to the custody of your child, including but not limited to:

  • Parental time: who your child will spend time with each day, for how long, and on what basis;
  • Parental responsibility: making major and long-term decision for the child, including in relation to the child’s education, welfare, medical matters, religious and cultural matters;
  • Child support: including the contributions towards the costs of raising the child and the calculation of those contributions; and
  • Contested court hearings.

Our Family Lawyers can assist you in recommending and implementing appropriate services and options to achieve the results you seek without the need to attend Court, such as mediation. However, if litigation is required, we will advocate for an outcome that is in both your, and your child’s, best interest.

 

Depending on circumstances, if both parents are agreeable to the custody arrangements, the matter may be resolved quickly and amicably. However, in most circumstances, the difficulty of arranging the custody of a child stems from disagreements between the parents on what custody arrangements should be made, and often may end up in Court for their determination.

 

It is important to note that child custody arrangements are not only for biological parents, however, can also be applied to other family members that the Court determines have a significant relationship with the child, and is in the children’s best interest, such as grandparents.

The Best Interests of the Child

In family law, the principle consideration that the Court considers before determining custody arrangements, is ensuring that the ‘best interest of the child’ is met.

 

To determine what is in the child’s best interest, the Court will focus on protecting the child from any harm or family violence, and maintaining a meaningful relationship with both parents, rather than focusing on what is the most convenient option for the parents.

Equal Shared Parental Responsibility

When it comes to which parent will have responsibility of the child, the Court adopts the presumption of ‘equal shared parental responsibility’. That is, the Court presumes that both parents are jointly involved and will have equal responsibility when it comes to taking care of the child, and making decisions on the child’s behalf.

 

Only in matters where there is evidence of child abuse or family violence, will the Court generally grant sole parental responsibility to one parent.

What if both parents agree on custody arrangements

If both parents are able to reach a verbal agreement in relation to the custody arrangements of their child, it is prudent to have the agreement recorded in writing. Our Family Lawyers can assist in preparing the appropriate documents to record the agreement, including preparing an appropriate parenting plan, or through Consent Orders from the Court, known as Parenting Orders.

Parenting plans

An agreement by both parents on the custody arrangements of their child can be recorded in a written agreement, setting out the structure of the custody arrangements, such as which parent the child will reside with, spend time with, and how much each parent will contribute towards the child in relation to both time and financially.

 

A parenting plan, however, is not a legally enforceable agreement. In contrast, Parenting Orders are legally binding.  

Parenting Consent Orders

An agreement by both parents on the custody arrangements of their child can be recorded in Parenting Consent Orders. Consent Orders are similar to parenting plans, however, an application is to be made to the Court for the making of such orders. If the Court determines the arrangement to be in the best interest of the child, the Court will make appropriate Parenting Orders, which would make the agreement legally binding and enforceable under the Family Law Act.

What if both parents cannot agree on custody arrangements?

If both parents cannot agree on the custody arrangements, then an application will need to be made to the Court seeking appropriate parenting orders. However, prior to the filing of any such application, the Court will require you to undertake the following tasks:

  • Read the Marriage, Families. and Separation brochure (a copy of which can be accessed from the link here);
  • Attend a Family Dispute Resolution Conference; and
  • If required, provide the other parent with a notice of claim.

 

If parties are unable to agree on the custody arrangements after the Family Dispute Resolution Conference, then a section 60I certificate will be issued, prior to the parent being allowed to make a Court application. Obtaining this certificate will allow you to provide the other parent with a notice of claim, stating the issues in dispute, and the orders that you are seeking.

 

The Parenting Orders will direct:

  • Where and with whom the child will live;
  • Parental responsibility of the child;
  • Who can communicate with the child;
  • Who will financially support the child; and
  • How major decisions will be decided about the child.

 

It is important to note that when any legal matter before the Court involves children, the Court will always decide and make Orders in the best interest of the child in deciding the matter. Our Family Lawyers understand the process.

 

Our philosophy in parenting matters revolves around two key words: insight and practicality. We are experienced Family Lawyers and will carefully advise and guide you through each step of the process of obtaining Parenting Orders.

 

To speak to a Family Lawyer today, call us on 03 8376 6209, or alternatively complete our online enquiry form and we will be in contact with you promptly.

Frequently Asked Questions

No, if you and your former partner are able to agree to custody arrangements, you can either have an agreement, agree to a parenting plan, or have your Family Lawyer draft Parenting Consent Orders.

Yes, you must attend a Family Dispute Resolution Conference and obtain a section 60I certificate, allowing you to make a Court application

The Court will ultimately decide what is in the child’s best interest, and make appropriate Parenting Orders accordingly.

Yes.

If you are concerned that your child may be taken overseas without your consent, our Family Lawyers can take steps to place the child on an airport watch list, which will prevent them from leaving the country.

Yes, depending on the arrangement in place.

A parenting order typically expires once the child turns 18 years old.

If there is a Parenting Order in place and one parent does not return the child to you, then you can apply to the Court for a recovery Order, which is enforceable by the police and other authorities so that the other parent returns the child.

If a child has expressed their desire to stay with you, but in staying with you an existing Parenting Order is likely to be breached, you will have to apply to the Court to amend the Parenting Order.

We make things easy, efficient and worry-free. Talk to us today.