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Child Custody Lawyers

Following separation, parents are likely to face difficult decisions about the future parenting of their children including where their children will live or attend school, whether equal shared care is appropriate or practical or how often the children shall spend time with each parent.

Australian law seeks to ensure that children receive proper parenting which includes a focus on parental responsibilities.

Child's Best Interests

The paramount consideration is the child’s best interests. The Law provides principles including:

  1. Children have the right to know and be cared for by both parents;
  2. Children have a right to spend time on a regular basis with, and communicate regularly with both parents and other people significant to their care and development including grandparents and other relatives;
  3. Parents should jointly share duties and responsibilities concerning the care, welfare and development of children;
  4. Parents should agree about their future parenting;
  5. Children have a right to enjoy their culture.

If separated parents cannot negotiate future parenting arrangements between themselves, assistance can be sought from social workers, psychologists or our solicitors.

There are many effective forms of alternative dispute resolution to help separated parents including a dispute resolution conference or mediation.

Parents must attempt dispute resolution prior to making an application to the Family Law Courts, unless in emergent or urgent circumstances or if there has been family violence.

Parenting Orders

If arrangements can be agreed upon between the parents, the arrangements can be formalised by:

  1. Parenting plan: which is a private agreement between the parents which is not legally enforceable; and
  2. Consent Orders: an agreement between the parents, which are converted into orders, filed in the Family Court and is binding and legally enforceable.

When making a parenting order the Court must apply the presumption that it is in the best interest of the child for the child’s parents to have equal shared parental responsibility for the child – the presumption relates solely to the allocation of parental responsibility as defined in the Family Law Act (ie major and long term decisions for the child). It does not provide for a presumption about the amount of time the child spends with each parent.

If a Parenting Order provides that a child’s parents are to have equal shared parental responsibility for the child the Court must:

  • consider whether the child spending equal time with each of the parents would be in the best interest of the child, willingness and ability of the parents to facilitate and encourage a close and continuing relationship between the child and the other parent, attitude to the child and the responsibilities of parenthood;
  • consider whether the child spending equal time with each of the parents is reasonably practicable – distance between the parents house, parents’ current and future capacity to implement and communicate, impact on child and “other”; and
  • if it is, consider making an Order for the child to spend equal time with each of the parents.

If a Parenting Order provides that a child’s parents are to have equal shared parental responsibility for the child and the Court does not make an Order for equal time the Court must:

  • consider whether the child spending substantial and significant time with each of the parents would be in the child’s best interests;
  • consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
  • if it is, consider making an Order to provide that the child spends a substantial and significant time with each of the parents.

Childen's Matters - what to consider?

Matters to consider when making arrangements for your children:

  • where the children will live/ time the children will spend with each parent/ communication between the children and each parent.
  • allocation of parental responsibility including the responsibility for making decisions about major long term decisions (including education, religion, health, the child’s name and changes to the child’s living arrangements) .
    • if parental responsibility is shared, the form of consultation which will occur between the parents sharing the responsibility (ie letter, telephone, email).
    • maintenance of a child or child support (subject to the provisions of the Child Support (Assessment) Act 1989).
    • the process to be used for resolving disputes for the terms and operation of the agreement.
    • the process to be used for changing the agreement in a change of circumstances.
    • any aspect of the care, welfare or development of the children or any other aspect of parental responsibility for the children.

To discuss any parenting matters or for Family Law advice contact our experienced Family Lawyers today. Based in Mermaid Beach on the Gold Coast.