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When parties are unable to voluntarily decide on where the children of the relationship should live, how often they see both parties and what is ultimately in the best interest of the child many seek an order from the Court that decides such issues. Given the significance of such an order, it is best that both parties seek separate advice from a lawyer, in order to better understand child custody laws and what avenues are available to them. In most instances, a lawyer will work with the party as to what they clearly wish for the child and the best way to go about these with the child’s best interest in mind.

In the recent case of Banks [2015] FamCAFC 36 (12 March 2015), the Full Court has reminded parents to be realistic and clear when determining their custody rights. In Banks, the mother was a Thai national who refused to return with the 5 year old son after a trip to Thailand to visit family. The Australian father sought an injunction against the mother on her return to Australia for work, seeking for her to return the child to Australia. While the primary judged conceded the first appeal as a result of the parties failing to identify their proposed parenting orders in a clear manner to the Court, it also reflects the need for a realistic approach to interim parenting orders. When the father sought for the child to live in Australia until the matter came to trial, the Court found that this would be unrealistic given the child’s primary residence in Thailand and that the child had not seen the father in two years. However parenting orders were put in place for the father to spend unsupervised time with the child when he was in Thailand and five communications per week via electronic means. In this way, the father was able to engage his child custody rights in seeing the child as much as he wanted, while taking into account the child’s long term residence in another country and his lack of familiarity with the father. The Court in this matter focused on parenting orders that gave the child as much time with each parent through a shared responsibility arrangement, through a variety of means.

Our specialist family law team can assist and advise about the best way to negotiate and reach an agreement about where your children are going to live and how much time the children will spend with the other parent which can be written up and made into an enforceable Court Order without needing a judge to decide.

Our Accredited Family Law Specialists are able to look at the best interests of your children and give you advice as to your clear wants in child custody laws.

Speak to one of them today.

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For advice about child custody laws contact us on 1800 300 170 or email us at

Family law situations can be complex and sometimes they can involve serious issues.  Information outlined is proposed to provide general guidance only. Due to the seriousness of legal matters as well as the uniqueness of your individual situation, professional advice should be sought. For advice, please contact one of our Family Lawyers.