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Child Custody & Children’s Matters
At ALA Law (formerly Amanda Little & Associates) we understand that often the hardest part of a relationship breakdown is the effect it has on the family unit, in particular on children.
The Family Law Act is the legislation that governs the time that the children will spend with each of their parents. The child’s best interest is the paramount consideration when the Court is determining children’s matters, and at the heart of this for a child custody lawyer is the understanding that children need a meaningful relationship with both parents (unless one of the exceptions applies).
Our team of Accredited Specialists in Family Law and Senior Family Lawyers are recognised leaders in all aspects of Children’s matters and will provide you with advice on how to reach a resolution that works for your family whilst minimising your legal costs.
If you reach an agreement this can be formalised into a Parenting Plan or into Consent Orders.
Your Child Custody Lawyer can speak to you about which of these is most appropriate based on your circumstances.
What Processes May I Need to Consider Around Child Custody and Family Law Matters Pertaining to My Children?
The court needs to understand as thoroughly as possible the circumstances that make your case unique, therefore the more detail that can be provided, the better.
To help gather these details for the court, there are several processes to consider.
It is important to understand that when a Court consider what arrangements should be in place for children they are bound by the “best interest” principal – that is the Court must ask “What is in the children’s best interests?” and then make Orders that follow suit.
How do I avoid Court and come to an agreement about my children?
You can reach an agreement with the other parent of your children and formalise this agreement in 2 ways:
- Consent Orders – which are Orders that are made by the Court confirming the agreement you reach. These are binding on both parties and finalise the arrangements
- Parenting Plan – this is an agreement which is flexible, but is not binding on either party
The process of reaching an agreement can be affected by:
- Parents agreeing between them as to the future arrangements for their children without outside assistance;
- Parents engaging a lawyer to negotiate through letters and telephone calls with the other parent or their lawyer; or
- Attending Family Dispute Resolution.
We encourage our clients to try to resolve between them initially, if this does not work then to engage our team and our child custody lawyer to attempt to reach resolution through correspondence and then if required to attend Family Dispute Resolution.
How does the Court determine what is in the children’s best interests?
The child’s best interest is the paramount consideration when the Court is determining children’s matters, and at the heart of this is the understanding that children need a meaningful relationship with both parents unless one of the exceptions applies such as the child being neglected or a victim of family violence or at risk of neglect or family violence
The Court is guided by The Family Law Act – which sets out the primary and secondary considerations ( s.60CC considerations) the Court must take when determining what is in a child’s best interests – click here to be taken to the legislation.
When gathering your information to provide evidence to the Court as to why your position is what is in the children’s best interests, it is important to keep in mind the s.60CC considitions.
Your child custody lawyer will assist you to prepare a chronology or timeline and gather evidence to show the Court by way of Affidavits and tender materials that what you say is true and correct and the Court should make the Orders you seek.
My Child / Children Have Been Taken Without My Permission, What Can I Do?
You should immediately reach out the parent / person who has taken your child and try to accommodate their safe recovery.
If the person refuses to return your child or refuses to negotiate at all, you can apply for a Recovery Order. This will put recovery of your child directly into the hands of State and Federal Police who will then work to do just that.
What is a Recovery Order?
A Recovery Order is defined under The Family Law Act – you can find a link to the law here.
It is used by the court to order the return of a child / children to the parent of the child, person who lives with the child, or the person who has parental responsibility for the child.
Who is eligible to apply for a Recovery Order?
The primary carer of the child is able to apply for a Recovery Order.
Establishing who is the primary carer is done through either providing an existing Court order or giving evidence to the Court by way of Affidavit
When should I apply for a recovery order?
If your child / children were taken without permission, you should apply for a Recovery Order immediately. The more quickly you take action and start the legal processes, the sooner your child will be back in your custody.
If you take action soon after the child was taken, the court can see it is important to you that the child be returned as soon as possible. This can help you down the road in your ongoing family law matter.
If for some reason you decide to wait, you will need to file for an Initiating Application rather than a Recovery Order. An Initiating Application is not considered an urgent request by the court and will be delayed in its first return for several months.
Where should I apply for a Recovery Order?
The Family Law Act is a Federal law and is heard by the Federal Magistrates Court or the Family Court.
In some limited circumstances a local court may hear your Recovery Application and they will then transfer the proceedings back to the correct Court.
Your child custody lawyer will discuss with you the best options for your matter and moving forward.
I am in Court and I don’t know what some of the terminology means- help!
Below are some basic explanations of common events or legal terminology used in the Family Court
If you find yourself in this understandably stressful situation, do your best to get help finding your child / children. Contact friends and relatives to find out if they know any details. If that path doesn’t yield any information and you fear for your children’s safety, you should apply for a Location Order.
A Location Order is a court order that ‘requires a person or government agency to provide the court with information about a child’s location’. See here for details.
You can put your child / children’s names on the Airport Watch List if you are afraid your ex-partner is planning to take them overseas without your permission.
The first step is to apply for this in court. You should then immediately send a copy of your application to add the name(s) of your child / children to the Airport Watch List plus copies of all related court orders to the Federal Police. Timing is important here; the more quickly you make the application and get the required paperwork to the Federal Police, the sooner you can have the peace of mind knowing your children won’t be able to leave the country without your permission.
These are court ordered meetings between the parents, child / children of a family law matter and a court-appointed family consultant (usually a psychologist or social worker). Your Child Custody lawyer does not attend this meeting and if such a meeting is ordered all parties are obliged to attend.
By ordering this type of meeting, the court is attempting to better understand the circumstances around your family law matter – they are particularly interested in hearing the viewpoints, experiences, and emotions of the children.
The court can use its findings from these meetings to set interim parenting arrangements for the family. Sometimes, the result of these meetings will help the parents come to a preliminary agreement around care and custody of the children.
The family consultant will gather the details of the child inclusive conference and create a Memorandum for the Court document. The memorandum is then used as evidence in any court proceedings that follow.
It’s important to understand that anything shared in the child inclusive conference is not confidential.
Child inclusive conferences are good for short-term arrangements, but a more in-depth Family Report may be necessary to provide more details for complex cases.
If there are documented safety concerns, domestic violence, or a high level of intrapersonal conflict between the parents and / or between a parent and the children, the court can order implementation of Supervised Contact. It can also be ordered if there is a fear that the children will be abducted by one of the parents. If one of the parents has limited capacity to care for the children and needs assistance, a Supervised Contact order can be implemented as well.
Under the rules around Supervised Contact, the parent with these restrictions ordered may have contact with their child / children, but visitation must occur in the presence of a person or relative who is known and well-trusted to both parents or a representative / supervisor from a children’s contact service. Supervised Contact orders are only mandated if the court determines the order is in the best interest of the children.
The supervisor must be present to ensure the safe transferral of the children from one parent to the other. Their presence allows the parent with Supervised Visitation restrictions in place the opportunity to spend time with their children.
The circumstances and people involved in a Family Report are similar to a Child Inclusive Report except that a Family Report usually takes place over the course of a few days. Interviews can be conducted with all parties involved but can also be one-on-one interviews. Other significant people such as grandparents or other close relatives can be brought in to be interviewed for Family Reports as well.
Again, the family consultant compiles the important information relevant to the case into a report to be presented to the court. The court uses the report to make recommendations around custody based on the best interests of the child and what would benefit them most into the future.
Unlike the Child Inclusive Report, Family Reports are confidential, and parents cannot receive a copy of the report until after it has been submitted to the court. The report cannot be shared outside the court without permission granted by the court. If circumstances around the safety of the child warrant it, the court has discretion to make the report available only to the lawyers involved in the case.
If you are able to reach an agreed resolution for your children and or property division, this will most likely be formalised into Consent Orders.
Consent Orders are Orders that are submitted to the court by the agreement of both parties to be made into final orders. As stated above they can relate to the long-term arrangements to be put into place regarding your children and / or how your assets are to be divided.
Once Orders are made by consent, they are binding on both parties and finalise your family law matter.
The Court may make an Order for the appointment of an Independent Children’s Lawyer or ICL. ICL is a lawyer; their role is to represent a child’s interests.
The ICL forms their own independent view of a child’s best interests and presents this view to the Court. This is done through reading each parties material, meeting with the child (in most cases), viewing subpoena material, discussing ands assessing the children’s needs utilising expert opinions and their own independent judgement.
s.60CA of the Family Law Act 1975 (Cth) requires that the children’s best interests are the paramount consideration when making Orders.
“In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.”
To determine what is in the child’s best interests the court considers the primary and secondary considerations as set out in s.60CC of The Family Law Act 1975 (Cth).
The primary considerations are:
- the benefit to the child of having a meaningful relationship with both of the child’s parents; and
- the need to protect the child from physical or psychological harm from being subjected to, exposed to, abuse, neglect or family violence.
The secondary considerations include:
- Any views expressed by a child and any factors, such as the child’s age, level of maturity or understanding and cultural background;
- The nature of the relationship which a child enjoys with each of their parents and with any other significant people.
- The likely effect of any change in a child’s circumstances;
- Any practical difficulties or expenses which arise in a child having contact with a parent.
- The capacity of each parent and any other person with whom a child is living to provide for the child’s needs including emotional and intellectual needs.
- The willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent.
- The child’s maturity, sex and background of the child;
- The need to protect children from psychological or physical harm;
- The attitude demonstrated by both parents and any other person involved in the care of a child towards the responsibilities and duties of parenthood.
- Any allegation or history of family violence.
The Court would then otherwise consider the specific facts of each individual case and particularly those facts which related to any of the above matters.
The Court has traditionally viewed shared care arrangements as requiring:
- Both parents residing within close proximity of each other;
- Children to be of an age where they are able to cope with such an arrangement;
- The ability of both parents to communicate effectively with each other.
If any form of shared care arrangement is to operate between parents then there is a much greater need for parents to cooperate and effectively co-parent their children.