Child Custody & Children’s Matters

At 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 each parent will have with their children. 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).

We will provide you with advice to assist in creating a safe loving and stable environment for your children. Our Principal Solicitor is also a Family Dispute Resolution Practitioner certified by the Attorney Generals Department and is able to use her mediation and negotiation skills to help bring a resolution to your matter without the need for the matter to go to Court.

If you reach an agreement this can be formalised into a Parenting Plan or into Consent Orders.

Your Lawyer can speak to you about which of these is most appropriate based on your circumstances.

Wish to discuss your situation?

Please contact us for relevant advice and help in reaching a resolution for your children’s matter on 02 4761 6935

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 us 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 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 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

What are my options if my children have been taken without my permission and I am unable to locate them or have not had contact with them for some time and do not know how to contact them?

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 Oder 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.

What can I do if I believe my children will be taken overseas without my permission?

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.

Child Inclusive Conference

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). Lawyers do 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.

Supervised Contact / Visitation

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.

Family Report

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.

What are family law consent orders?

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.

What is an ICL and what do they do?

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.