A marriage separation or de facto relationship breakdown is a very stressful and emotional experience for the adults involved, but it’s also a very difficult time for the children of the relationship.
To ensure a sense of security and stability for them, it’s important to prioritise the needs of the children. Our child custody lawyers have years of experience in child custody matters and are here to help you every step of the way.
Can we make a custody agreement without going to court?
If you and the other parent are able to reach an agreement about what arrangements will be in place for your children without going to court, then this is the best outcome for everyone involved as it will save considerable time, stress and money.
A child custody lawyer can prepare the documents you can sign to make your agreement final and binding. These documents are called an Application for Consent Orders and Consent Orders. Once these documents are signed by you and the other parent (and they are approved by the court), they have the same force and effect as if they were made by a judge following court proceedings.
What if we can’t reach an agreement outside of court?
Unfortunately, and often despite the best intentions of the parents, it is not always possible to reach an agreement without the assistance of the court. In such situations, the court has the power to deal with all issues relating to child custody, including where the children live and what time they spend with each parent.
What are parenting orders?
A parenting order (also known as a consent order) refers to the orders made by a court about the parenting arrangements for your children.
Who can apply for parenting orders?
Either of the parents can make an application, regardless of whether they are married or in a de facto or same sex relationship. It is also possible for grandparents or any other person concerned with the care or welfare of the child to make an application for parenting orders.
Learn more: grandparents rights
How to apply to the court for a parenting order
Before you make an application to the court, you and the other parent will need to engage in mediation with an accredited family dispute resolution practitioner. Until a parent attends mediation and obtains a section 60I certificate, they will be unable to file an application with the court seeking parenting orders.
However, there are some exceptions to this in circumstances of urgency or if there is family violence or abuse. It is also possible to obtain a s60I certificate if the other parent refuses to participate in the mediation.
When you file an application with the court, you can ask the court to make ‘interim and final parenting orders’ or just ‘final parenting orders’.
What are interim orders?
Interim orders refer to temporary orders that are in place until the court makes a final decision about what arrangements should be in place for your children, or until you and the other party reach a final agreement.
Some examples of when you might choose to apply to the court for interim orders are as follows;
- The other party will not allow you to spend any time with the children; or
- The other party will not allow you to spend adequate time with the children.
Generally, interim orders are sought when there is an urgent issue in your matter that needs to be resolved as soon as possible.
How to obtain an interim order
An interim hearing will usually take place within one to three months of an application being made to the court. At an interim hearing, the judge will read written statements (Affidavits) that both parties have submitted to the court. Then the judge will listen to arguments (submissions) from the legal representatives or the parties themselves if they do not have a child custody lawyer.
After considering the Affidavits and the submissions, the judge will then make a decision about what temporary orders should be in place.
What are final orders?
The final hearing usually happens within a year of a party making an application to the court.
At a final hearing, any person who has provided an Affidavit to the court will usually give sworn oral evidence in court, and each of these people will usually be cross examined about what they have said in their Affidavit.
The judge will also consider a report that is prepared by a court appointed counsellor, psychologist or psychiatrist who has met with the parties before the final hearing. This expert is usually also cross examined in court.
At the end of the final hearing, the judge will also hear oral submissions from each party’s legal representative or from the parties themselves if they don’t have a legal representative.
Following a final hearing, the judge will make final orders about what arrangements will be in place for the children until they are 18 years old.
How does the court make a decision about family custody?
When deciding what parentings orders to make, the court applies the principles in the Family Law Act 1975, and an overview of these principles are as follows:
Equal shared parental responsibility
There is a presumption at law that after separation, both parents have “equal shared parental responsibility” for their children. This means that both parents have equal input into decisions that affect the long term care, welfare and development of the child.
It also means the court must consider the children spending equal time with each parent or an arrangement where the children spend significant and substantial time with each parent. Keep in mind, the court’s primary focus is ensuring that the arrangement is not only in the best interests of the children, but that it is practical.
In matters that involve violence, abuse, neglect or if one parent is incapable of parenting a child, this presumption that the parents have equal shared parental responsibility can be rejected.
How do you prove the best interest of the child?
Section 60CC of the Family Law Act 1975 sets out what factors the family court is bound to consider when deciding what arrangements are in the best interests of the child. There is a two–tiered system, including “primary” and “additional” considerations.
- The benefit to the child of having a meaningful relationship with both parents
- The need to protect the child from physical and psychological harm
- Any views expressed by the child
- The nature of the child’s relationship with each parent and any other persons (including grandparents or other relatives of the child)
- The extent to which each parent has taken or failed to take the opportunity to spend time with the child, communicate with the child or participate in making major long term decisions about the child
- The extent to which each of the child’s parents have fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
- The capacity of each parent to provide for the child’s needs (both intellectually and emotionally)
*this is not an exhaustive list of the additional considerations
Ultimately, it is a matter for the court to weigh up all of these considerations in determining what arrangement is in the best interests of the child, and it will vary on a case by case basis. We suggest engaging a child or divorce lawyer early on so you can understand your rights.
What other matters can child custody lawyers help you with?
- When one parent wants to relocate with the child interstate, overseas or a significant distance from the other parent.
- When one parent wants to take the child on an overseas holiday or obtain a passport for the child.
- When one parent abducts or does not return the child to the other parent.
- When one parent does not follow (breaches) court orders that are in place in relation to a child.
At Owen Hodge, our family custody lawyers can provide you with comprehensive legal advice. Please call 1800 770 780 to speak to one of our family lawyers or schedule an initial consultation. You can also speak to our child support lawyers about any child support matters.
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“I won my case at the Guardianship Tribunal yesterday.. After discussions with my mother, we agreed that it would be in my aunt’s best interest to have the Public Guardian take over as I just cannot manage her doctor’s appointments, support care arrangements, dental, optical appointments etc from so far away… I did however retain my Enduring Power of Attorney position, and it was upgraded to being my aunt’s Private Manager…
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Kristy-Lee has extensive experience and knowledge in regards to family law and her beautiful nature and considerate approach is what I will be forever thankful for.
Frequently asked questions
- Legal custody: determines who is responsible for legal decisions – can be sole or joint.
- Sole custody: the court decides only one parent has legal custody.
- Joint custody: parents agree on a parenting plan or the court rules for shared custody.
The cost of lawyers for child custody issues varies on a case by case basis. It also depends on whether the parents can come to an agreement or if the matter is particularly complicated.
Without a court order for child custody, a mother cannot legally keep the child away from the father. However, this can also depend on whether there is abuse, neglect or violence involved. We highly recommend speaking to a child custody lawyer in Sydney if you find yourself in such a situation.