A contentious issue relevant to family law is child custody. Making arrangements for your children in the event of family separation can be stressful and difficult. Generally, arrangements for your children can be made by agreement or Court Order. Our child custody lawyers can guide you through your parenting and custody dispute so that the best interests of your children are protected.
When can I apply for a parenting Order?
It is necessary for parties to attend family dispute resolution (FDR) with an accredited FDR provider before commencing proceedings in Court for a parenting order.
Undertaking the process of FDR allows you and your ex-partner to negotiate a careful arrangement for your children after separation. Therefore, your child custody rights are immensely important.
However, not all matters are appropriate for family dispute resolution and there are exemptions available to some parties to commence proceedings without first attending family dispute resolution. Some examples of these exemptions are in the case of risk of family violence or child abuse or physical/mental incapacity affecting one party’s involvement.
How can I document an arrangement for my children?
Parenting arrangements can be documented by way of:
- Parenting Plan; or
- Consent Orders.
A Parenting Plan is an agreement between the parties which is not approved by the Court. Therefore, it is not enforceable. It does however; serve to set out a plan for the children’s arrangements and record the intention of the parents at that time.
A Consent Order on the other hand, is approved by the Court and is enforceable. A Consent Order remains valid until the child or children turn eighteen.
The Court’s power to make a parenting Order and to also have regard to a parenting plan is quite wide and independent legal advice should be sought from Matthews Folbigg specialist family lawyers about this.
What is a parenting Order?
A parenting Order is an Order which sets out issues such as:
1. Where a child is to live;
2. How much time a child is to spend with a non-resident parent;
3. When and how a child is to communicate with their parents;
4. Who is to have responsibility over the child and how parental responsibility is to be allocated between the parents.
A parenting Order can be applied for by parents, a child and any other person concerned with the children such as grandparents.
Seeking custody advice is therefore very important.
What can I do if I have a parenting Order and my child has not been returned to me?
In circumstances where one parent has retained a child contrary to the terms of a parenting Order, a party may file an application to retrieve the child from the other parent. This is known as a recovery application.
In other circumstances, a party may file a Contravention Application if they believe that a party to the parenting Order has contravened any of its terms.
What can I do if my ex-partner has taken my child overseas?
It will depend on which country the child has been relocated to.
Australia is a signatory country to an international treaty known as The Hague Convention. If a child has been removed or retained in a country which is a party to the Convention (as Australia is), an application can be made to the Court in that country; to seek the child’s return. Importantly, the issues surrounding a Hague Convention matter are very complex and require expert family law advice.
How does a Court determine what parenting Order to make for my child?
In determining what parenting Order to make for a child, whether it be equal time or substantial and significant time, the Court must have regard to:
- The best interests of the children; 2. What is reasonably practicable in the circumstances.
- The following are some of the factors the Court takes into account:-:
- Any wishes expressed by the child; 2. The capacity of each parent to care for the child;
- The relationship that the child has with each of the parents;
- The cultural factors of the child;
- The parties capacity to communicate with each other;
- The proximity of where each party lives.
How can we help you?
Reaching a settlement in relation to parenting issues can be complex and stressful.
Matthews Folbigg divorce lawyers specialise in parenting settlements for both married and de facto couples. We are well equipped to give custody advice.
We have a team of solicitors including accredited specialists in family law who may provide succinct legal advice to you in a cost efficient manner.
REQUEST A CALL BACK
We serve all of the legal needs of individuals, government and businesses, regardless of their complexity, throughout all of Sydney and beyond.
We are industry leaders, and we never lose sight of the outcome that you want. We guide you through the legal process to achieve that outcome.
Our growth and our success, comes from the growth and success of our clients.