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What is ‘child custody’ and its influence on Australian Family Law

Separating from a former spouse is a difficult situation and is emotionally draining. Unfortunately, the effects of separation also affect your children. Questions begin to rise, such as ‘who is to have custody of our children’ ‘or how will child custody work’.

The phrase ‘child custody’ is often used by parents in discussions as to where the children should live and how often the children should spend time with the non-resident parent.

However, under the Family Law Act, the words ‘child custody’ are not used; rather, the legislation uses the terms parental responsibility’ and the Courts make Orders which includes the phrases ‘spend time with’ and ‘live with’ [...]  READ MORE →

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The Presumption of Equal Shared Parental Responsibility – What this means and how it affects your child – Child Custody Lawyer advice

The presumption of equal shared parental responsibility is a consideration of the Court when determining child custody applications. The “best interests of the child” is an enshrined consideration under Australian law and is the foremost consideration in child custody cases. As such, the Act set out under section 61DA (1) that it is ‘in the best interests of the child for the parents to have equal shared parental responsibility for the child.’ It is important to note however that this presumption looks to shared responsibility, not shared time. Furthermore, it requires both parents to make joint decisions about the long-term considerations for the child. Therefore parents are required to make a genuine effort to consult with the other parent and come to a general consensus about such decisions. This is all in the best interests of the child. [...]  READ MORE →

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Court introduces new initiatives to help alleviate the significant delays in the Court

A divorce lawyer will advise you that the Court delays in hearing and finalising your property application under the Family Law Act have in some registries became even longer. It is for this reason that the divorce lawyer tries to encourage their client to consider mediation either privately or through the Court.

The Court itself is also considering options to help reduce the back log of cases.  A divorce lawyer will provide information about the PPP Program currently being tried out in some registries including at the Parramatta Federal Circuit Court. [...]  READ MORE →

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Changing Existing Parenting Orders

Once final parenting orders are made in family law proceedings, they can only be changed with the assistance of your child custody lawyer in specific circumstances, including:

  1. where the parties agree to a change, or
  2. where a party can show that there has been a significant change of circumstances that makes a change necessary.

The Court will generally not “reopen” parenting proceedings that have been finalised to change parenting orders, unless there is a good reason for doing so and it is in the child or children’s best interest.   Continuing litigation about parenting matters is generally not considered to be in the best interest of the children, or the parties. [...]  READ MORE →

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Question of Paternity – How Child Support Lawyers Can Help

When making an application for child support with the Department of Human Services (DHS), your Child Support Lawyers need to satisfy the Registrar that the person being assessed to pay the costs of the child is a parent of the child. This is often called “proof of parentage”. While parents may be biological parents, the term parent also includes adoptive parents, where the child has been born as a result of artificial conception procedures, or if the child was born as a result of a surrogacy. [...]  READ MORE →

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What Happens if I Breach My Parenting Orders?

Once the Family Court has made parenting Orders either at hearing or by consent, each party must comply with those orders. If one party has departed from those Orders there may be serious consequences for such breach. You should seek legal advice from a divorce lawyer if you or your ex-partner believe there has been a breach of the orders.

If you are unable to resolve the breach, one option forward is a Contravention Application. Your divorce lawyer may file a contravention application in the Family or Federal Circuit Court when one party alleges the other has breached their parenting orders. Contravention proceedings are generally confined to very clear cases. Your divorce lawyer will need to set out that the other party: [...]  READ MORE →

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Interim Hearings – What are They and Will I Need a Family Law Lawyers Assistance?

An interim hearing can be described as Court event that gives the parties a temporary or short-term outcome until all the evidence can be considered, tested and evaluated at final hearing with the help of your family law lawyers. The Court typically takes a conservative approach at the interim hearing, generally taking a path that is least likely to cause harm to the child. Any order made on an interim basis with the assistance of your family law lawyers may be changed once the matter has been heard on a final basis. [...]  READ MORE →

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DISPUTE RESOLUTION – Our Family Law Lawyer looks at the new digital service “amica”

Dispute resolution is often used by couples who are separating or divorcing.  A benefit of dispute resolution is that an agreement can be reached, without the added cost and complexity of litigation or other formal legal processes.  Dispute resolution processes also allow the parties to have greater control and management of the process and outcome.

A family law lawyer can provide advice in relation to the best resolution option for a dispute.  A family law lawyer can help to understand a person’s rights and responsibilities and the law that may apply to that case.  This includes helping a couple going through separation to reach an agreement without the need to go to Court. [...]  READ MORE →

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Is COVID-19 a reasonable excuse to withhold a child from a parent? A Family Law Lawyers Answer

A common question asked of family law lawyers in 2020 is: “do I have to continue following parenting Orders during the pandemic?”  There are very limited circumstances in which the Court will permit parents to fail to comply with Orders of the Court.

Parents will need to establish that there is a reasonable excuse for not complying. Whether the action or conduct is needed and necessary to protect the child should be considered.

In a recent case of Pandell & Walburg (No 2) the Court considered the circumstances of  COVID-19 and how it relates to reasonable excuse. [...]  READ MORE →

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What Does the Closing of the NSW-Victoria Border mean for my Family Law Matter?

The NSW Law Society published a COVID-19 update on 9 July 2020 providing some guidance to families and family law lawyers about the re-closing of the border between NSW and Victoria. The update is as follows:
With NSW-Victoria border closures in place, it’s expected that parties should cooperate and ensure the best interests of the child are addressed by complying with court orders. If strict adherence to parenting orders is not possible, it is imperative that any revised arrangements reflect the spirit of the orders. The Courts have previously issued information in relation to parenting issues that may be of assistance including: [...]  READ MORE →

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Family Law Lawyers Explain Equal Shared Parental Responsibility

If either you or your partner’s family law lawyers have made a parenting application to the Family Court, there is a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility. That is, both parents should have a role in making long-term decisions about a child such as where they go to school, decisions about the child’s health, the child’s religious and cultural upbringing or changing the child’s name.

If you believe that equal shared parental responsibility is not in the best interests of your child, your family law lawyers may be able to challenge the presumption. Depending on your individual circumstances, the Court may consider whether sole parental responsibility should be granted. This would result in one parent alone having the authority to make long-term decisions about the child. Below are some of the factors that the Court may consider when determining parental responsibility. [...]  READ MORE →

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Plain English Guide to Divorce

 Click here to download our Plain English Guide to Divorce

When Can You Get a Divorce

You can get a divorce if your marriage has broken down beyond repair. Generally, you must have been separated for at least 12 months. You do not have to be living in different houses to be considered separated. If you have children under the age of 18 years, you will need to have proper arrangements in place for the children.

Documents Needed

There is a number of supporting documentation that you will require in order for your lawyer to process your application which include:

  1. Marriage Certificate (with translation if not in English)
  2. If neither party is born in Australia, proof of citizenship, residency or visa with passport proof evidencing you have been in Australia for the last 12 months

Time Limit: Property

Your divorce takes effect one month and one day after the divorce Order is made. After that, you will generally have 12 months to bring an application to Court to divide your property. [...]  READ MORE →