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Judicial Mediation: A New Option To Resolve Your Dispute

As of 1 January 2019, parties to a family law dispute and their marriage lawyer, in appropriate cases, may now have the option of Judicial Mediation in the Federal Circuit Court of Australia. Judicial Mediation is not intended to replace or substitute private mediation. Rather, the court expects that parties to a family law dispute exhaust all mediation alternatives, such as private mediation with a private mediator, prior to Judicial Mediation.

The Judicial Mediator

The Judicial Mediator may not be the Judge that would ordinarily determine the family law dispute. This Judge is referred to as the Docket Judge. Where both Judges consent, the Docket Judge may refer the proceeding for Judicial Mediation to another Judge.

How to Initiate Judicial Mediation

Judicial Mediation can be initiated in two ways. Firstly, you or your marriage lawyer can make an oral application in court. Alternatively, you or your marriage lawyer may apply for judicial mediation in writing to the Docket Judge. The written application must include a brief summary in bullet point format addressing why the matter is suitable for Judicial Mediation.

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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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Child Custody Laws Advice

Isn’t 50/50 care my right under child custody laws?

With the emphasis on both parents being more involved in the care of children after separation many people assume that parenting law now guarantees a shared care or 50/50 split of the child’s time with each parent.

While the overriding principle since the Family Law Act commenced in 1975 is that all parenting arrangements should be made ‘in the best interests of the child’ a series of changes to family law since 1996 has seen a steady move from the notion of ‘parents child custody rights’ to an approach which prioritises the rights of children.

Section 60CC of the Act focuses on the importance of children being safe from harm and having a ‘meaningful relationship with each parent’. Family law also encourages parents to work together (where it is safe to do so) and negotiate care arrangements which best suit their children and their individual circumstances. The old notion of child custody ‘rights’ gives way to a more responsive outcome.

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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 – Parenting Arrangements

Following the breakup of a relationship where children are involved, the children’s short and long term arrangements need to be organised between the parties. This is often difficult given the high emotional nature of separation. If this does become complicated it is suggested that you seek legal advice on child custody laws and assistance to find a solution that caters to the whole family and most importantly the best interests of the child or children involved.

Parenting arrangements, traditionally referent to as ‘custody’ look at things such as:

  • Who the child should live with
  • What parent is responsible for each aspect of the child’s upbringing
  • At what times will the child spend time with the other parent
  • What situations will require the parents to discuss matters relating to the child
  • How parenting arrangements can be altered

It is our hope to assist you in reaching these agreements with the other parent without the requirement of going to court.  Alternatively, we can also assist you in making informal agreements decided by you and the other parent legally binding. However, if both parties are unable to reach a single arrangement, than the court can make and enforce orders for you.

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Child Custody Laws: Parenting Plans and Parenting Orders

When making parenting orders under the Family Law Act 1975, child custody laws stipulate that the court is required to maintain the best interests of the child/children involved as the paramount concern.  It is advised that when divorce or a de facto relationship breakup occurs, that parents follow specific principles when making parenting plans.

Under the Family Law Act 1975 child custody laws highlight that:

  • both parents are responsible for the care and welfare of their children until the children reach 18, and
  • there is a presumption that arrangements which involve shared responsibilities and cooperation between the parents are in the best interests of the child.

Child Custody Laws: How does the court determine the best interests of the child?

When deciding on the best interests of a child, the court examines two tiers of consideration – primary and additional.

Primary considerations consist of:

  • The benefit to children of having a meaningful relationship with both parents.
  • The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
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Child Custody Laws Urge Parents to be Realistic in Their Parenting Orders

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.

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