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During or after divorce or separation proceedings usually comes the issues of the child or children’s custody. When parents cannot agree on where, when and who the child should be living with, it can be difficult for all parties involved, especially children. This is where family law comes into play. The emotionally charged and tense issue of child custody is often not sorted out amicably or without the intervention of lawyers and court. In Australia, factors in the Family Law Act are used to determine the living arrangement of children in a custody arrangement.
Child custody is one of the most difficult and exhausting issues that a person can face. After all, it determines how often and how much time you can spend with your children. Your family lawyer from Prominent Lawyers will fight their hardest to ensure that you get the time that you deserve with your child. If you’re about to enter or you are currently in an ongoing child custody battle and are curious about the process, then take a look at our breakdown.
Determining where the child will live
When parents cannot agree where a child should live, the court makes the final decision. This decision is made in accordance with child custody laws in the Family Law Act. Under Australian law, the following considerations must be taken when deciding on a child’s living arrangements.
- To enjoy a meaningful relationship with each parent and
- To be protected from physical and psychological harm and from being subjected or exposed to family violence, neglect and abuse.
In any case, the protection of the child from harm outweighs any other factor.
In some cases, the court may also consider other factors including, the views of the child or children in question. However, though the court may request this view, it doesn’t mean that they will listen to it, especially if the safety of the child is in question. Additionally, the relationship between the child and each parent and their respective extended families may influence the court’s decision to place the child with the parent and family that they are most comfortable with.
The court can also consider the parents’ past actions, specifically, whether each has made an effort to spend time with the child. The ability of each parent to provide emotionally, financially and intellectually for the child will also be considered.
In a nutshell, a large part of the decision is based on which parent is best for the child’s well being and future.
Parenting plans and consent orders
Parenting plans are written agreements that set out an arrangement for children. This is usually entered into when parents cannot agree on the living and visitation arrangements of their child/children. It will include details of where the children will live, their visitation times with the other parent and where holidays will be spent. Though helpful in the event of a disagreement, this is not a legally enforceable document.
In order to make a parenting plan legal, a parent can complete an application for a consent order and attach a copy of the parenting plan. If this is approved by the court as a consent order then it will be legally enforceable.
We recommend making your document legally enforceable as it saves you trouble in the future in case your former partner backtracks on the initial parenting plan.
Non-compliance with child custody rights from one party
In some cases, parents deny access to visitation. This is usually as a result of poor communication, revenge or symptoms of the relationship. Regardless of the reason, remember that you have visitation rights. Denial of your rights and access to your children warrants action.
You can attend family mediation in an attempt to sort the issue. However, if the matter is urgent or this option failed previously, then we advise you to contact us about starting an initiating application in the Federal Circuit Court of Australia or Family Court of Australia.
If you attend a dispute resolution centre and it fails then, acquire a certificate from your mediator saying that there was an attempt made to resolve the matter but it failed. Take this certificate and file it with a contravention application stating that your former partner or the other parent has failed to uphold your visitation rights and has breached the court order. This may result in the enforcement of the Court Order and punishment of the other parent.
At Prominent Lawyers, we want to help you through the emotional rollercoaster of a child custody battle. We understand how mentally, emotionally and financially draining the process can be and will fight our hardest for what you and your child deserve. Children are often the most affected in these situations. We will ensure that your child and you feel supported in your time with us. Our team of lawyers who are experts in the legal compensation field will guide you through every step of the exhausting process until you and your child are content with the arrangement decided.
Get in touch with us on 1800 77 66 46
