Children's Issues

Make an enquirySeparation and Children

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.

Below are some main points to consider.

 


Children and 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.

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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.

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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.

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Decisions parents will have to make

  • Where the children will live (one place or two?)
  • What religious celebrations and worship the children will take part in
  • What type of education and schools the children should attend
  • What attendance at sporting and extra-curricular activities is appropriate
  • How to fit in with the parents’ work arrangements
  • When and where the children should spend time with others (grandparents and other relatives)
  • What the handover arrangements will be
  • How to make arrangements for the children during holidays (school holidays and long weekends)
  • What arrangements should be in place for birthdays, special and family celebrations
  • Whether the children have any special needs, including medical requirements
  • What arrangements are reasonable for spending time with siblings and step siblings, and
  • How to bring flexibility into the terms of the agreement to provide for future events

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Cannot reach an agreement on arrangements for the children

What happens if we cannot reach an agreement on the arrangements for the children?

  • If an agreement cannot made by agreement, then Court proceedings may be issued.
  • Before you can start proceedings, you must get a certificate indicating that you have undertaken ‘appropriate mediation’ or ‘primary dispute resolution’. This is compulsory in children’s matters. It involves going to a Family Relationships Centre or an Accredited Family Dispute Resolution Practitioner and attempting to resolve the issues. Hopefully this brings about agreement and you can then take a shortcut in the Court process by having the agreement made legally binding through Court Consent orders.
  • However, you can still get the certificate even if you have not resolved anything at the session. Also, if one party fails to attend the session, the certificate can still be issued stating this fact.

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Changing my child's name

What if I want to change my child’s name?

A child’s name cannot usually be changed unless both parties agree to a change of name. If you wish to apply for a name change you must either seek the consent of the other party or apply to the Court. The primary consideration will be whether it is in the child’s best interests to have his or her name changed. Based on past Court decisions, factors to consider include;

  • The short and long-term effects of the change in the child’s surname;
  • The short term and long term advantages of the child’s name staying the same ;
  • Any embarrassment likely to be experienced by the child if his or her name is different from that of the parent with day to day care;
  • Any confusion of identity which may arise for the child if his or her name is changed or is not changed;
  • The effect which any change in surname may have on the relationship between the child and the parent whose name the child bore during the marriage; and
  • The effect of frequent or random changes of name.

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