Many separated couples are able to agree about future parenting arrangements for their children and do not require the assistance of lawyers, except with documenting their agreement. This is no doubt the best outcome for separated parents and their children and one that is encouraged by our Family Law team.
However, we know that it is not always possible to reach an agreement on child custody & children’s matters and we can assist in advising on how the Act will apply in such instances.
The law
The basic principles set out in the Family Law Act state that:
- children have the right to be properly cared for and protected from harm, and
- parents have the responsibility to care for their children.
When determining care arrangements, the Family Law Act states that the best interests of the child must be the primary consideration.
Children’s matters are not limited to disputes between parents and often include grandparents and other people closely concerned with the care of a child.
Compulsory family dispute resolution
Except in limited circumstances you will be required to attend Family Dispute Resolution (FDR) and make a genuine attempt to resolve your parenting dispute prior to issuing a court application. The FDR process involves parties attending mediation to try to reach an agreement about the future arrangements for their children, child custody and any other matters in dispute.
If the matter does not resolve at this stage further negotiation through lawyers may be necessary and in some cases it will be necessary to make an application to the court.
General approach to children’s issues
You will probably have to compromise on arrangements for your children. Try to be flexible about the arrangements. It will be better for you and, more importantly, much better for your children if you are not fighting over every single issue.
It helps to keep lines of communication open in the negotiation phase, as well as after you have resolved children’s issues. There are many decisions to be made about your children’s future- in almost all circumstances you will have to consult each other about them and reach agreement.
If your children’s matters end up with lawyers or in the Family Courts, keep a sense of perspective on what is happening. It’s pointless spending $2,500 on legal bills for an argument over who should be washing and returning the children’s school clothes when you could buy a second set for one-tenth of the legal expense.
How the court sees the children’s situation may be quite different to what you would expect or how you would see it.
Will the child’s wishes be considered?
Each child is an individual and as they grow older the court will pay more attention to their personalities and opinions. For example, when deciding the child custody of where a child should live a court is more likely to consider the opinion of child in the mid- to late-teens.
Relocating and overseas travel
If you want to move a long distance away from your partner sharing time with your children will be difficult. These cases often end up in court because it is difficult to decide who the children should live with when the direct consequence is restricted contact with the other parent.
You should not make any plans to relocate or travel overseas with your children without first obtaining written consent from your former partner or an child custody order from the court allowing you to do so.