Child Custody Lawyer in Melbourne
If you have separated and have children, living arrangements for the children need to be decided. Under the Family Law Act, parents are responsible for the care and welfare of their children until they reach 18 years of age. Our Child Custody Lawyers can help you reach an agreement about parenting matters and child custody arrangements.
Where a matter is not before the Court, it is the responsibility of the parents to ensure that the children have a meaningful relationship with both parents, and is protected from harm or abuse.
This means that a parent needs to be facilitative and supportive of the children spending time with the other parent. It means that neither parent may, for example, say bad things about the other parent to, or in the presence of, the children and must allow the other parent to have contact with the children.
In Australia, the Family law Act requires the best interest of the child to be considered, which encompasses several key considerations. It is important that children have a meaningful relationship with each parent, and they are protected from harm. The Family Law Act also presumes that each parent has ‘equal shared parental responsibility’. ‘Parental responsibility’ is all about the legal duty, power, responsibility, and authority a parent has in relation to a child. A person with parental responsibility for a child is responsible for all matters relating to, for example, the care, welfare, and development of a child, such as the child’s schooling, cultural upbringing, health, name, and living arrangements.
This responsibility does not change because the relationship between the children’s parents breaks down.
Understand “What the Child’s Best Interest Means in Court“.
Parenting and Child Custody Arrangements
A parenting plan is a non-binding agreement between parties which sets out the agreed parenting arrangements for the children. A parenting plan is an inexpensive alternative which allows the parties greater flexibility in preparation and control of the arrangements. However, it is important to be aware a parenting plan is not binding. If one party does not comply with the agreement there is no mechanism of enforcement.
If you and your partner cannot reach an agreement about children’s matters, or if there are urgent issues that need to be addressed, Family Court proceedings may be necessary. We can represent you in court and guide you through what can otherwise be a confusing process. With our experience and expertise, you can be sure that your case will be presented to the court in a way that achieves your desired outcome for your children.
Parenting Order (Consent Order)
If the parties agree on the parenting arrangements of the children, a parenting order may be made. This involves an application to the court for consent orders which sets out the parenting arrangements including who the child will live with, the time they spend with each parent or relative, communication between the parent and the children and any other aspect of care and welfare for the child.
The benefit of a parenting order is that it is binding. The order is granted and endorsed by the court. If one party does not follow the order, an application can be brought to the court for contravention.
You must try to resolve the matter
Parties to a parenting dispute are required to attend compulsory mediation with a family dispute resolution practitioner to attempt to resolve the dispute before making application to the Court. A certificate known as a “section 60I Certificate” will be issued after the family dispute resolution process is undertaken, which a party can then use in support of their application to the Court. There are exceptions to this rule, such as urgency.
The Court Process
If you are unable to settle or matter, then you may be forced to seek the assistance of the Federal Circuit and Family Court of Australia (FCFCOA) to resolve your matter.
Your case in will be commenced once all attempts to resolve your case by negotiation have failed.
A case in the Federal Circuit Court and Family Court of Australia starts by filing the following documents:
- An Initiating Application. This sets out the orders you want the court to make and has some brief details about you.
- An affidavit. This is the evidence you will rely on to have the court make the orders you want
- A Genuine Steps Certificate, confirming the applicant’s compliance with the pre-action procedures;
- A 60I certificate from a Family Dispute Resolution Practitioner, unless a party submits that an exemption applies, in which case an affidavit or an Affidavit – Non-Filing of Family Dispute Resolution Certificate setting out the factual basis of the exception claimed under;
- A Notice of Child Abuse, Family Violence or Risk;
- A Parenting Questionnaire;
- An Undertaking as to Disclosure;
- A copy of any family violence order affecting the child or a member of the child’s family; and;
- If the application seeks interlocutory orders, an affidavit stating the facts relied on in support of the interlocutory orders sought.
Once your matter is in court, there are a number of things which will be considered such as the best interests of the child.