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Child Custody


Contact Armstrong Legal:
Sydney: (02) 9261 4555
Melbourne: (03) 9620 2777
Brisbane: (07) 3229 4448
Canberra: (02) 6288 1100

Separation from your husband, wife or partner is one of the most stressful, if not the most stressful, situation you may experience in your lifetime. Often, the initial focus is about how each of you will deal with the separation and how each of you can meet your ongoing financial needs. Despite all this stress, it is important to remember that the separation is most likely to also be the most stressful situation that your children have experienced in their lives.

The ideal situation for your children is that you and your former partner are able to communicate with each other and reach an agreement about the future arrangements for them. If you or your former partner cannot agree about the future arrangements for your children then it is important for you to obtain advice.

At Armstrong Legal, we have a team of family lawyers who are experienced in assisting families through this traumatic and difficult process. Our Melbourne team can deal with all aspects of your family law matter, including property, child custody, parenting disputes, maintenance, child support and divorce. Our office is in the heart of the legal district, at Level 13, 575 Bourke Street, Melbourne VIC.


HOW DO I APPLY FOR CUSTODY?

When you apply for ‘custody’, you are, in fact, applying for what the Court calls parenting orders.

You cannot apply for parenting orders through the Courts unless you have first tried to reach agreement with the other parent or party through the mediation process. This involves contacting a mediation service such as Relationships Australia or a Family Relationship Centre, who then invites the other party to participate.

If arrangements for children cannot be agreed through mediation, or if the other party refuses to attend, then the mediation service will produce what is called a section 60i certificate. It is this certificate that enables you to apply for parenting orders through the Courts.

There are exceptions to the requirement for a s.60i certificate to be produced, such as the mediation service determining the matter is not suitable for mediation or there has been family violence involved between the parties.

An Initiating Application is filed with either the Federal Circuit Court or the Family Court in which you set out the parenting orders that you want the Court to make, for example, that the children live with you and spend time with the other parent/party at certain times. An Affidavit is also filed with the Court at the same time which sets out your evidence and the reasons why you are asking the Court to make the requested Orders.

Once the Application is filed with the Court, a date is set for the first hearing of the Application. The Court documents are then sent to the other parent/party who has their chance to file a Response to your Application (setting out the Orders they would like the Court to make) and also an Affidavit setting out their evidence and reasons why they want their requested Orders.

The first Court date is a chance to either agree on arrangements or, if no agreement can be reached, for the Court to deal with the competing Applications.

INTERNATIONAL RELOCATION:

If you have separated from your partner and would like to move overseas to live with your child, it is important to ensure you have the consent of your former partner, or a Court Order. Many countries are signatory to the Hague Convention regarding child abduction and if you relocate overseas unilaterally, the other parent can request the Central Authority to make an Application to have the child returned to Australia.

If your former partner will not consent to you relocating overseas, then you can apply to the Court for an Order permitting you to go. When the Court decides an Application for International Relocation, they are really deciding a parenting matter. Like all parenting matters, the overarching concern for the Court is determining an arrangement that is in the child’s best interests. Where one parent has always been the main carer for the child and that parent wants to live with the child overseas, one of the main concerns for the Court is ensuring the child maintains a meaningful relationship with the parent the child no longer lives with.

The Court will take a range of considerations into account in making its decision whether to allow a parent to relocate, however where the primary carer has not demonstrated an intention to facilitate the child’s relationship with the other parent, it is less likely that the Court will be satisfied that it is in the child’s best interests to live overseas.

Parenting cases of this kind are the more difficult cases to run in family law. The Court’s decision can also be affected by circumstances of family violence, substance abuse, the child’s views (if appropriate) and the child’s specific needs.

To prepare your Application for international relocation, you need to paint a picture for the Court of what your life and the life of the child will look like when you move, so the Court can be satisfied that it is in the child’s best interests to go. For example:

  • Where you will live and what your living expenses will be?
  • Where you will work and what your likely wage might be?
  • Where the child will go to school?
  • The extra-curricular activities on offer for the child?
  • Whether the child has lived there before and has friends there?
  • Family and other supports available for you? and
  • How the child will maintain contact with the other parent?

The same questions should be addressed to paint a picture of the child’s life should they remain in Australia.

It is always important to get advice to ensure you are fully informed of your legal options that are tailored to your specific circumstances and needs.

SOLE PARENTAL RESPONSIBILITY:

You as a parent, automatically have the ability to exercise parental responsibility, meaning you and the other parent are able to make major long-term decisions for your child both together and individually.In the event you cannot agree about the major long-term decisions for your child, it is possible to apply to the Court for an Order providing you with Sole Parental Responsibility.

An Order for Sole Parental Responsibility means that you can make all of the major long-term decisions for your child without having to consult the other parent. This means you can solely make decisions about:

  • Education;
  • Health;
  • Religion;
  • Culture;
  • Name; and
  • Where the child lives.

Practically speaking, it also means you can apply for a passport without the need for the other parent’s signature.

As you can see, the kinds of decisions a parent with Sole Parental Responsibility can make are serious and the Court does not make an Order of this kind lightly. In fact, the Court will presume that parents have Equal Shared Parental Responsibility unless:

  • There are reasonable grounds to believe that a parent has committed Family Violence; or
  • There are reasonable grounds to believe that a parent has abused the child or another child who was/is a member of the family; or
  • It would not be in the child’s best interests.

You can only have parental responsibility by Order of the Court. The Application process can be long and painful. Often an Application of this kind will also be seeking Orders about who your child lives with and the time your child spends with you and the other parent. Allegations of family violence and/or abuse require specific and clear facts set out in an affidavit form with your other, relevant evidence. We recommend seeking advice from a legal professional practising exclusively in family law prior to filing an Application of this kind.

GRANDPARENTS APPLYING FOR PARENTING ORDERS:

Usually, parenting orders are made between the two parents of a child. However, there may be other people who wish to apply for an order about children.

The law allows non-parents to apply for parenting orders. A non-parent needs to be either a grandparent of the child, any other person concerned with the “care, welfare or development” of the child, or interestingly, the child themselves.

A wide range of people can be considered a person concerned with the care, welfare or development of a child, including step-parents, siblings, other relatives or even close family friends.

The two most common types of applications are:

  • An application to spend time and communicate with the children. These applications are usually made where the parents, or one of them, are refusing any meaningful relationship between the children and the grandparent or other person. The type of contact likely to be granted by the Court will depend on the individual circumstances of the case, however it is usually less time than is ordered in favour of a parent.
  • Applications to obtain parental responsibility for the children and orders for the children to live with a grandparent or other person. These applications are usually made where both parents are unwilling, unable or lack the capacity to care for the children (for example, as a result of addiction problems or family violence).

The Court will carefully consider the background of each individual case, examining the involvement a person has had in the child’s life and whether a continuing relationship between the child and the person involved would be in the best interests of the child. The benefit to the child of having a meaningful relationship with both of his or her parents, and the child’s right to be protected from harm or exposure to abuse, neglect or family violence are the foremost considerations for the Court.

The law also recognises that children have important relationships with people other than their parents, and these relationships are still considered by the Court when a parenting decision is made.

When a non-parent makes a parenting application, there is also a requirement that everyone involved in the proceedings meet with a Court-appointed family consultant to discuss the proposals. The family consultant then reports back to the Court about those discussions.

A non-parent application can even be made in circumstances where the child’s parents are not separated. These situations are more unusual, and generally arise either:

  • when there is significant concern for the welfare of the children due to risk factors such as abuse, addiction or violence; or
  • when there has been a breakdown in the relationship between the parents and the other adult, and the other adult believe is it is in the children’s best interests to maintain a relationship despite the objection of the parents.

These matters are difficult, complex and require a sensitive and thoughtful approach.

BLENDED FAMILIES:

In today's society, the nuclear family unit is no longer the norm. Families come in all shapes and sizes, and it is not uncommon for families to include children from previous relationships. As these families grow and develop, it is now common for families to include half-siblings. These blended family relationships can create some complexity to parenting proceedings before the Court due to the number of relationships involved.

Notwithstanding the complexity, the Court will determine the matter no differently from other matters where the blended family dynamic is not present. The Court is able to make parenting Orders in favour of any person deemed to be "concerned with the care, welfare and development of the child". This can include step-parents.

The focus of the Court in determining all parenting matters is to ensure that the child/ren's best interests are paramount. The primary considerations the Court will look at are:-

  • Ensuring, where possible, that the child has a meaningful relationship with both parents; and
  • Ensuring that the child is protected from risk of harm, including psychological, physical or emotional abuse.

Where the above two considerations are conflictive, the protection of the child from exposure to abuse is paramount.

Secondary to the above considerations, are a host of additional considerations that the Court needs to examine. This is often where the blended family dynamic is taken into account. In considering the blended family, the Court will look at factors such as:

  • The child's relationship with the step parent, step siblings, half siblings and any other person;
  • The child's relationship with the biological parents;
  • Any views expressed by the child;
  • The living arrangements for the child and any other children;
  • The likely effect on the child's circumstances if either of the parties' proposed Orders were made;
  • The practical difficulty imposed in respect to the child spending time with the other parent or any other person if the Order sought by either party were made;
  • The care arrangements to date for the child and any other children; and
  • Whether there are any allegations of abuse made against step parents or any other member as against the child.

The above list is not exhaustive. Each case may require the Court to examine a range of differing factors. Ultimately, the Court's primary focus is making Orders which are in the child's best interests.

On a practical level, there are a number of factors you should consider before creating a blended family dynamic with your new partner.

What will your blended family look like?

In some step families, it may be difficult to co-ordinate the children's respective living arrangements so that all the children can spend time together. It may also be important to discuss your new relationship with your ex-spouse as it can often cause resentment as they may perceive your new spouse assuming the role of a father/mother for the child. If the child becomes close with their step-sibling or half-sibling it may be important to re-negotiate the time your child spends with your ex-spouse to enable the children to spend time with one another.

If a Court is asked to make a parenting Order, the Court will want to know about your child's relationship with his/her step and half siblings as well as your new partner. Your child's views may also be important here. It is not uncommon for children to express a desire to change their living arrangements to avoid spending time with step-siblings or step-parents.

Ramifications for child support

If you and your partner have a child together, and one of you is paying child support to an ex-partner in respect to a child/ren from a previous relationship, it is possible that the birth of your child will decrease the amount of child support to be paid.

If you or your new partner receive Centrelink benefits, then the creation of a blended family may impact upon your eligibility for this payment. It is important that you advise the Department of Human Services of any change in your living arrangements.

The Department of Human Services will not order a non-biological parent to support a step-child by way of child support. However, the Family Court and/or the Federal Circuit Court may make an Order for a step-parent to pay child maintenance only if the Court deems that they have a duty to maintain the child.

For further information concerning parenting matters, or information in respect to blended families, please do not hesitate to contact one of our specialist family law solicitors.

WHAT IS FAMILY DISPUTE RESOLUTION?

Family Dispute Resolution (“FDR mediation”) is a process of negotiating parenting arrangements for children. Parents who wish to commence court proceedings are required to attend mediation prior to commencing court proceedings, unless exceptions apply.

An FDR mediation can be initiated by either parent or any other person (for example grandparents) seeking to have a parenting arrangement for children. FDR mediation can be done through government funded agencies like Relationships Australia or Life Works or through a private mediator.

FDR mediations can be conducted with the assistance of lawyers representing each party or the parties being on their own. Mediators are neutral and do not take anyone’s side. So, the need for solicitors representing parties only arises when there is a power imbalance due to for example, if one party is legally qualified and the other party is not or if one party does not speak English well.

Mediators usually interview each party separately to complete the induction process. During this process, the mediator usually explains their role and the way the mediation will likely be conducted. If the mediator considers it appropriate, the mediation can take place with both parties being in the same room otherwise, it can also be conducted by way of “shuttle” mediation – with each party being in separate rooms for the entire period of the mediation.

At the end of the mediation, if the parties reach a settlement, the mediator will draft a parenting plan. That parenting plan becomes evidence of the parties’ intention for the future parenting of their children. Although parenting plans are not binding, they can be converted into court orders by agreement. If no agreement is reached at the end of the mediation, the mediator will issue a section 60i certificate which allows the parties to start court proceedings.

If you would like advice in relation to commencing court proceedings, please do not hesitate to contact one of our family lawyers.

WHAT IS SHARED CUSTODY?

‘Shared custody’ is a common phrase used by the general public when talking about arrangements for children.

What ‘shared custody’ actually refers to, however, is the amount of time that a child spends with each parent. When a parent wants a ‘shared custody’ arrangement, they usually mean that they want the child to spend equal time with both parents.

The time that a child spends with each parent is different to the concept of parental responsibility. In the absence of any Court Order, both parents retain joint parental responsibility for their child which means they have an equal say in making decisions about the child’s long term care, welfare and development such as where the child attends school, should he/she have a major medical procedure or their religious upbringing.

In making a decision about how much time a child should spend with each parent, the Court must:

  • consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
  • consider whether the child spending equal time with each of the parents is reasonably practicable; and
  • if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

If the Court decides not to make an order for a child to spend equal time with each of the parents, then it must then consider the child spending substantial and significant time each of the parents on the same three bases as outlined above.

When making any order about arrangements for a child, the Court’s main two considerations are:

  • the benefit to children of having a meaningful relationship with both parents; and
  • the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

The Court is required to give greater weight to the consideration of the need to protect children from harm.

When considering arrangements for your child, it is important to focus on what is best for him/her as opposed as to what is best for the parent.

SOLE CUSTODY AND PARENTAL RESPONSIBILITY:

Parental responsibility includes making all the major decisions affecting the children, for example:

  • what school they should attend;
  • what medical treatment they should receive;
  • whether they should be raised with a particular religion;
  • what name they should be known by, etc.

If there is no Court order, parents automatically have equal shared parental responsibility and therefore must consult with each other in relation to these issues and attempt to jointly reach a decision that is in the best interests of the children.

When making a parenting order, the Court has to start by presuming that it is in the best interests of the child for the parents to have equal shared parental responsibility. That means that the parents need to jointly discuss and make together the types of decisions outlined above.

In some cases there are exceptions that mean the Court will not order equal shared parental responsibility. These can include, but are not limited to, family violence, child abuse and serious addiction issues. The Court will carefully consider whether these issues are of such concern that the parent should not be involved in jointly making decisions about the children. Sometimes this will include a consideration of whether the other parent’s safety might be at risk, or whether the parents are so unlikely to be able to reach joint decisions that it would have a negative impact on the children.

If the Court decides that equal shared parental responsibility is not appropriate, they will decide which parent should make the major decisions about the children, and may make an order for sole parental responsibility. An order for sole parental responsibility means that one parent can make all of the major decisions affecting the children without consulting the other parent.

Sometimes, the Court has concerns about the ability of the parents to reach joint decisions, but still wants to ensure that both parents have some involvement in the decision making process. In those cases, the Court may make a conditional order for sole parental responsibility. These orders provide for one parent to make the decisions, but require that parent to first ask for the other parent’s opinion about the issue, and take that opinion into account when making the final decision.

Similarly, some families may have difficulty reaching joint decisions about one aspect of a child’s life but no difficulty reaching decisions about all other issues. In that situation, the Court has the power to order that one parent have sole parental responsibility about a particular issue (for example, the child’s education), but that the parents otherwise have equal shared parental responsibility.

Orders for equal shared parental responsibility are the most common orders made. If you think you may need a sole parental responsibility order, for one or more issues relating to your children, Armstrong Legal have specialist family lawyers to provide you with the advice you need.

CAN THE COURT MAKE AN ORDER FOR THE CHILDREN TO NOT SEE A PARENT?

If a Court is required to make an order about the living arrangements for children after parents separate, then usually it will make an order ensuring that the children regularly see both parents. The living arrangements that a Court orders depends on the individual circumstances of each family and include:

  • Children living with each parent on a week about basis;
  • Children living with one parent and spending time with the other parent for anywhere between 1 night and 6 nights per fortnight;
  • Children spending time with each parent during school holidays.

Sometimes the Court makes an order for the children to not see a parent but this is only done in circumstances where the Court believes that that it is not in the best interests of the children. The Court may make an order for children to not see a parent when there are serious concerns about the care of the children when with a parent. These serious concerns include:

  • When children will be or have been exposed to significant family violence when in the care of a parent;
  • When a parent has significant mental health issues and has not taken steps to address such issues;
  • When a parent has an illegal substance addiction;
  • When a parent has sexually abused a child of the relationship or engaged in conduct where the Court believes that there will be an “unacceptable risk” for the children to see the parent.

A parent concerned about if the children should see the other parent should:

  • Be clear about the reasons why the children should not see the other parent;
  • Consider if the other parent can do anything such as counselling, behaviour change programs or seek medical assistance;
  • Consider if the other parent can see the children whilst supervised by another person or through the use of supervised contact centre.

Before a parent decides that the children should not see the other parent and is considering asking a Court to make such an order then he/she should obtain advice from a qualified family lawyer to discuss the specific circumstances of his/her family and the options available to minimise the impact on the children.

If you need advice about any family law matter then Armstrong Legal have experienced family lawyers throughout Australia with Accredited Family Law Specialists in Melbourne, Victoria to provide you with the advice that you need.


where to next?

If you have any questions regarding family law, we invite you to telephone Armstrong Legal’s experienced, knowledgeable and approachable Family Lawyers. We look forward to discussing your family law questions with you and can also help you arrange a no obligation initial consultation at our office so that we can meet you in person and discuss your case in greater detail. Our office is conveniently located in Melbourne CBD at Level 13, 575 Bourke Street, Melbourne, VIC.

Why Choose Armstrong Legal?

Contact Armstrong Legal:
Sydney: (02) 9261 4555
Melbourne: (03) 9620 2777
Brisbane: (07) 3229 4448
Canberra: (02) 6288 1100

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