Family Law - Children & Parenting
Children and Parenting Matters: Navigating Custody Disputes
Family law parenting & child custody services that preserve crucial parent-child relationships.
Shane’s goal in all child parenting custody cases is to serve the best interests of children whose parents are separating or divorcing, and preserve crucial parent-child relationships.
- The relevant child custody and parenting laws provided with clear explanations of their impact.
- Careful consideration of your child’s best interests.
- A strategy for obtaining your desired results.
- Agreement on the right approach within the guidelines of the law:
- Aggressive or conciliatory?
- Adversarial or collaborative?
Shane McClure will work with you to customise a parenting solution suitable for your circumstances. This means reaching an understanding of what is realistic, what is best for your children and what will best preserve and strengthen parent-child bonds.
Shane McClure also assists with the following specific Family Law parenting issues:
- Consent Orders
- Court Appearances in the Federal Circuit & Family Court of Australia
- Divorce and Separation
- Divorce mediation and settlement
- Family Violence Intervention Orders
- Matters involving the Department of Families, Fairness & Housing (DFFH) (formerly DHHS)
- Third Parties
- Variation of Existing Orders
Factors Considered in Children’s & Parenting Matters
When deciding on matters as a “child custody” lawyer, numerous factors are considered. Some of these factors may include:
- Where should the children live?
- How much time should the child spend with the other parent?
- What is to happen if a party wishes to take the child on an overseas holiday?
- Are there any issues or safety concerns with the child spending more or significant time with one party?
- What will happen on the child’s birthday?
- How will third parties wanting to spend significant time with the child or children (such as grandparents, aunts and uncles) be handled?
The Australian Family Law Act 1975 outlines the law in detail that children have a right to enjoy a meaningful relationship with both of their parents, and to also be protected from harm. A court is required to give greater weight to the consideration of the need to protect children from harm, and Shane will guide you through what this means, and what you can do if you have concerns about your children’s safety.
The Australian Family Law Act 1975 also sets out to define Parental Responsibility and Parenting Time:
Presumption of Equal Shared Parental Responsibility
Parental responsibility means all of the duties, powers, responsibilities and authority that parents should ordinarily have in relation to their children. There is a presumption that parents have equal shared parental responsibility for their children. This presumption does not apply if there are reasonable grounds to believe that a parent of the child has engaged in abuse of the child or family violence. The presumption can be contested if the court is satisfied that shared parental responsibility would not be in the best interest of the child.
When the parents of a child under the age of 18 separate, they both continue to share parental responsibility for the child in this way, until a Court orders otherwise.
A court may decide it is in the best interests of the child to remove parental responsibility from one or both parents. A court can also decide to assign parental responsibility to a legal guardian.
If you feel that the other parent cannot provide your child with the protection they require, and fulfil the responsibilities parents have in relation to bringing up their children, you should seek legal advice as soon as possible.
There are no defined and automatic rules about what arrangements for which parent a child will live with or spend time with after their parents separate. This used to be called making custody or contact arrangements, and as a result many people now come to us for advice on child custody laws and ask for our help in getting custody of their children. The terms child custody or making custody are no longer used in Australian family law, and using these terms before the Court is now frowned upon and not appropriate within the current laws.
There is no rule that children must spend equal or “50:50” time with each parent, or just the weekends, or every second weekend.
Shane McClure recommends that it is best that both parents discuss their child’s individual needs, and each parent come to their own agreement about where their child will live, and how they will spend time with each of their parents.
There are all sorts of different ways that separated families can make sure that their children have ongoing relationships with both of their parents and to ensure that the children’s needs are taken care of.
The Court’s Paramount Consideration
When making Parenting Orders, the court’s paramount consideration is the best interests of the child or children. This includes ensuring that the child or children have a meaningful relationship with both parents and protecting the child from physical or psychological harm. Additional considerations can also be taken into account by the court, such as the child’s opinions/views, practical difficulties, and attitudes of each parent towards their responsibilities.
FDR Mediation is Usually Required Before Taking a Family Matter to Court
If parents or guardians cannot agree to what is in the best interests of the children, the parties must usually attend Family Dispute Resolution (FDR). FDR is a form of mediation that focuses on assisting the separating parties to come to their own agreements and resolutions regarding what is best for both their child and their future.
The parents or families in dispute must attend FDR under family law before any proceedings in court can be initiated. Cases that involve allegations of family violence, intervention orders, child abuse, or other extremely urgent matters are usually exempt from family dispute resolution.
Role of a “Child Custody” Lawyer in Children’s & Parenting Matters
Under the Family Law Act in Australia, the preferred terminology when working through the custody process is “Children’s & Parenting Matters” instead of “child custody arrangements”, and “spend time with, or “live with” rather than “child custody”. A “child custody” lawyer can assist parents in resolving disputes and making decisions regarding their children’s welfare and future.
Informal and Formal Agreements – Parenting Agreements & Orders
If you and your former partner agree on the future arrangements for your children, you do not have to go to court. You can make a parenting agreement or obtain ‘consent orders’ for parenting orders approved by a court.
Parents can make informal agreements called parenting agreements or parenting plans as to the day-to-day arrangements for their children. They can be altered or revoked at any time by either party and are not legally binding.
Parenting Orders, on the other hand, are orders of the court that provide for parenting arrangements and are legally binding. Anyone concerned with the care, welfare, or the development of the child can apply to have Parenting Orders made. Interim Parenting Orders are temporary arrangements put in place until the parties reach an agreement or proceed to a final trial. Final Parenting Orders are final arrangements put in place by the court and can only be altered in limited circumstances.
Even if you don’t agree on everything, but you agree that you do not need to go to court, you can utilise Shane McClure’s services for mediation and Family Dispute Resolution Mediation to assist you on fine-tuning your parenting and child custody arrangements.
Varying Parenting Arrangements
For an application to vary Parenting Orders to be successful, the applicant must be able to show a ‘significant change in circumstances’ from when the orders were made. This is so parents and children are not continually subjected to the court process to re-determine issues already dealt with previously.
It is not enough that there has been a change in circumstances – for example, the children growing older. The change must be significant enough to convince the court to re-determine the issues. This area of law is often complex and will be unique for every family. It is recommended you seek legal advice first if you want to apply to the court to change Parenting Orders.
Enforcement of Parenting Orders
A Parenting Order is the same as any other court order. There are serious consequences for failing to comply. The court can penalize someone who breaches the order if they do not have a reasonable excuse for doing so.
If parenting orders are just not working, parties can attend family dispute resolution (mediation) to try and reach a solution. If this is not appropriate in the circumstances, the court can make an order to change the existing order, make an order for costs, impose a fine, make an order to attend a parenting program, or even impose a jail term of up to twelve months.
Seeking Legal Advice
Following separation, many couples are able to come to an agreement between themselves about arrangements for the care of their children. However, often there can be disputes about these parenting arrangements. When parents cannot agree about arrangements for the care of their children, it is prudent to seek legal advice so that parents can reach a resolution that is practical and appropriate for them.
When it comes to Children’s & Parenting Matters, the interests of the children must always come first. In the event that parents cannot agree on what is best for their children, it is crucial for parents to seek legal advice from an experienced children’s and parenting matters lawyer. An experienced family lawyer will be able to guide you through the process and provide you with the support and advice that you need.