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Child Custody Laws and Independent Children’s Lawyers

An independent children’s lawyer, also known as an ICL, is a Court-appointed lawyer who acts independently to represent the child’s interests in family law proceedings regarding child custody laws. The child, an organization concerned with the welfare of the child or any other person may apply for an ICL to be appointed. The Court may then make an order to appoint an ICL who will attempt to find out what the views of the child are.

The Full Court in Re K [1994] FamCA 21 provided some guidance on what the court might consider when appointing an ICL in matters involving child custody laws, including:

  • Alleged child abuse
  • Unsuitability of either parent
  • Parental conflict
  • Proposal to relocate the child far away
  • Alienation from a parent
  • A parent’s sexual preferences
  • Special medical procedure for the child

Role of the ICL

The role of the ICL is not to take instructions from the child, but rather, to represent the child’s best interests. The ICL should form an independent view of what is in the child’s best interests according to the evidence, act in the child’s best interests and make submissions to the Court regarding the child’s best interests. The child’s best interests must be distinguished, however, from the child’s wishes. An ICL is not obliged to follow the child’s wishes and may disclose information about the child against their wishes if necessary.

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What Do Child Custody Laws Say If Your Child Doesn’t Want To See the Other Parent?

Relationship breakdown can often be a difficult and turbulent time for your children. To navigate this time, some families seek parenting orders from the Court to determine where the children should live and when they can see the other parent. But what do child custody laws say if your child does not want to see the other parent? According to child custody laws, certain obligations exist for the resident parent to comply with the Court orders, some of which are considered below.

Positive Obligation to Encourage Access

In the matter of Stevenson and Hughes (1993) 112 FLR 415, the mother pinned the father’s telephone number near the telephone and informed the child they could call the father whenever they liked. On a separate occasion, the mother took the child to the husband’s residence in accordance with the orders but the child refused to go inside. The father made an application for contravention, claiming that the mother contravened the Court orders by failing to give the father access to the child. The Court found that “an access order imposes an obligation which goes beyond mere passive non-interference and it imposes upon the party who is obliged to give access a positive obligation to encourage that access.” The Court found that the wife had not done all that was reasonable in the circumstances to encourage the child to come to the telephone and speak to the father but had, in effect, issued an invitation in a manner in which the child was given the option to refuse.

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Child Custody

The law abolished the concept of ‘child custody’ and does not make any distinction between the rights of fathers and mothers. Instead, the ‘best interests’ or welfare of the child is the paramount consideration that the Court takes into account in determining ‘child custody’, that is who the child with live with and spend time with.

While the law does not guarantee an equal-shared parenting arrangement in every matter, both parents have the responsibility for the care of their children. If the Court decides that an equal-shared parenting arrangement is not in the best interests of the child, the Court must consider ordering significant or substantial time to the non-resident parent.

The question of how much time a child should spend with both parents is determined by what is in the ‘best interests’ of the child. This is achieved by having regard to the two ‘Primary Considerations’, that is:

  • Whether there is any benefit to the child having a meaningful relationship with both parents; and

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Child Custody Laws and Child Custody Rights – Where do I start?

Separation is often a stressful time for both parties. Alongside dealing with your own emotions during a particularly difficult time, parties with children have to make arrangements for the care of the child or children, as the case may be. Child custody, as it often referred to, concerns the resolution of parenting arrangements for children. This involves reaching agreement about with which parent the children will live with and the time that they will spend with the other parent during the school terms. It often extends to agreements about school holidays and special occasions throughout the year such as Christmas, Easter and Birthdays.

Considerations to keep in mind when negotiating an agreement about child custody:

  1. Separation is stressful on children too and each child may react in different ways to separation or divorce. The child’s age, maturity, personality and characteristics are some factors that will no doubt determine their reaction.
  2. It is important to remember that cooperation of the parties, particularly in the presence and hearing of the children, can be beneficial to the child’s reaction.

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Child Custody & Child Custody Laws

Child Custody Laws and Child Custody Rights are terms often used when parents seek advice in relation to parenting disputes. When parties make competing parenting applications, the Court is required to consider what is in the best interests of the child.

Children’s Rights

Child Custody Rights relate to the rights of the subject child, not the parents.

The rights of a child can be summarised into two primary considerations:

  1. The child’s right to have a meaningful relationship with both parents; and
  2. The child’s right to be protected from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

If the primary considerations conflict then the need to protect the child prevails.

The best interests’ principle is the overarching and paramount consideration in all parenting matters. Primary considerations, together with an extensive and broad list of additional considerations are matters that the Court will take into account when determining what is in the child’s best interest. An experienced family lawyer can advise you on which considerations are relevant to your circumstance.

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Why you should speak to family law lawyers about travelling overseas with children after separation

Before you put down the non-refundable deposit on your dream overseas holiday, it is best to check with family law lawyers whether you may need your former partner’s consent to take your children. While it is common for Orders to include mention about who holds the passports, how they are to be renewed and what is permissible overseas travels, they are not compulsory. This may mean you will need to seek the consent of your former partner to take your child overseas. You may also need to seek their consent in applying for or renewing your child’s passport.

Renewing or applying for a passport

If your Orders are silent on getting your children a passport or ensuring they remain valid, you will need to obtain the consent of your former partner in getting a passport. This will require you to complete a passport application or renewal application which shows the consent (generally the signature) of both parents. If your former partner refuses to sign the application, you may still able to apply for a passport.

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Child Custody Laws – How to place your child on the Family Law Watchlist

In attempting to place your child on the Family Law Watchlist it is strongly advised that you seek advice on child custody laws in order to understand your child custody rights and subsequently be able to complete the application form successfully.

Applications for the Family Law Watchlist must be specific and not implied indicating absolute or conditional prohibition on travel. This is a crucial aspect of the process and thus it is highly recommended that you obtain child custody laws advice prior to seeking court orders in order to enhance the successfulness and outcome of your case.

Speak to our Family Law team today to guide you through the process and assist you in knowing your entitlements under child custody laws. Our specialist custody and divorce lawyers are able to look at the best outcome for you and your child or children to ensure their interests and safety are well looked after. Further, they will be able to guide you through the watchlist process and clarify any queries you have.

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Advice on child custody laws for situations of parental abduction

Megan Palin’s recent article highlighted the growing reality of parental abduction in Australia. Statistics show that we hold ‘the highest per capita rate of parental child abduction in the world with about 250-300 cases every year.’ Palin went on to state in accordance with the Attorney-General’s Department that when applying for recovery orders, ‘some applications are rejected on the basis that the child in question has spent 12 months or more in the country he or she was taken to and “settled”.’ This highlights the importance of gaining legal advice on child custody laws early on from a family law lawyer if you find yourself in such a situation.

The importance of appropriate legal advice about  child custody laws to guide your application cannot be stressed enough in order to have a better fighting chance at recovering your child. If you are currently going through a divorce where children are involved and you are unsure of the child custody laws and your child custody rights and fear that your child may or has already been abducted by your ex-partner; then you should seek custody advice from our divorce and child custody lawyers who can aid you in preventing or retrieving your child/children. Our Accredited Family Law Specialists are able to look at the best outcome for you and give you custody advice as to your legal rights and entitlements to prevent you becoming part of the statistic.

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