Child Custody Lawyers: Family Law & Children’s Issues

When a marriage or de facto relationship breaks down, all to often the focus is placed on the division of property between the two partners. Instead, the wellbeing and welfare of any children from the relationship should be a priority for both parents.

Child custody, outlines the legal and practical relationship between the parents and their children. This can includes outlining the responsibilities of each parent and the living arrangements for each child.

There are many myths around child custody, so we have created a guide to give you more clarity around this area of family law. It is always a good idea to talk to a qualified family lawyer, to make sure you get the best outcome for your child.

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Children In A Divorce: Your Child Custody Guide

Child Custody Basics: What You Need To Know

This guide will go into detail about the different aspects regarding who gets custody of your child and the rights each parent has. However, here is a short summary of what you need to know if you are a separated parent with a child.

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Best Interests Of The Child

The Family Law Court will always make decisions based on what is in the best interests of the child. Matters regarding children are determined based on who the children will ‘live with’ and ’spend time with’.

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Both Parents Are Responsible

Both parents of children are responsible for each child’s care and financial upkeep irrespective of where the children’s parents were or have ever been in a relationship. This responsibility includes the ability to make decisions regarding the children’s day-to-day care, welfare, and wellbeing.

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Time With Children Can Vary

While each parent is equally responsible for their children, there is no guarantee that they will have a 50/50 split in the time shared with their children. If the Court decides to allocate time between the parents that is not 50/50, then the Court must consider allocated time that is ‘substantial and significant’ to the case.

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Adoptive Parents Have Equal Rights

Whether you are the biological parent or the adoptive parent, you will have equal rights in the custody of your children.

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Revoked Parent Visitation Privileges

If there is a history of domestic violence, sexual abuse, or similar, then the parents right to see their children can be completely revoked.

Child Custody Sydney

Putting Everything In Context: A Short History Of Children In The Family Law Act

Australian Family Law History

Child custody falls under the Family Law Act. Since the introduction of the Family Law Act in 1975, there has been a consistent shift towards the welfare and wellbeing of children in a relationship.

In 1983, the Family Law Act made a move to reduce the formal and combative nature of family law. This was done by clarifying the concepts of “custody” and “guardianship of children”.

Family Law procedures were further simplified in 1987 and the requirements for barristers and judges to wear traditional wigs and gowns was removed. The purpose of this change was to create a less threatening environment for families and reduce the idea that a parent had to “win” a family law case.

In 1990, Australia was a participant in signing the UN Convention On The Rights Of The Child (UNCROC). This continued Australia’s shift towards protecting the children of a relationship resulted in the Family Law Reform Act (1995).

Matters regarding children are determined based on who each child will ‘live with’ and ’spend time with’. Though custody is often referred to as where children will live, the concept was abolished with the Family Law Reform Act (1995).

Signing Of UNCROC
Child Custody Rights

The concept of ‘custody’ gave more powers to the parent with whom the child lived. With the abolishment of custody, both parents legally have the same (but not shared) parental responsibilities, regardless of where the child lived. With the introduction of “shared parental responsibility, ” the Court recognised the desire of parents for a continued joint duty and parenting after separation.

2006 also saw a number of changes made to the Family Law Act. As the focus shifted towards what is in the child’s best interest, more changes were also introduced to increase children’s rights and protection from violence, child abuse, and neglect. Importance was placed on a children’s family and social connections. Parents were encouraged to remain meaningfully involved in their children’s lives following separation.

What Is Considered The “Best Interests Of The Child”?

The Family Law Act (1975) prioritises the child’s best interests over that of the parent. So what does the Court consider in the best interests of the child? A child’s best interests as considered as being met when:

  • The children are protected from abuse, neglect, violence or physical harm.
  • Each parent fulfils their responsibility for the care, welfare and development of the children.
  • The children receive proper parenting to help them reach their full potential. This includes physically, emotionally, and academically.
  • The children have a meaningful relationship with both parents.

The Court will consider a number of factors when ruling what is in the child’s best interests. This includes:

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Any Wishes Expressed By The Child

The views and wishes express by a child will be considered, taking into account they child’s age, maturity and understanding.

The Child’s Relationship With Parents

The nature and history of the relationship of the child with each parent and any other relevant people (such as grandparents).

The Affect Of Changing A Child’s Circumstances

The court will assess the impacts a change in circumstances will have on a child. This may include separation from parents, other people such as siblings, grandparents or parent’s partners that the child has been living with.

Any Practical Difficulties From Custody Arrangements

This includes the practicality, financial expenses, lifestyle and educational difficulties that may occur as a result of long-distance parenting arrangements.

Ability Of Parents To Provide For The Children

The capacity of each parent and other persons to provide for the children, including their emotional and intellectual needs.

Parents Attitude

Each parent’s attitude to the children and their responsibilities as a parent. The court will also assess the willingness of each parent to encourage a relationship between each child and the other parent.

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Any History Of Violence

Determine if there has been a history of abuse, neglect, violence or physical harm done to the children by any of the parents. This will include assessing any previous Family Violence Orders.

Cultural Background

If the child is Aboriginal or Torres Strait Islander, then the child has a right to enjoy their culture with others who share it.

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Any Other Relevant Factors

The court will assess any other factors or circumstances it feels is relevant to the case.

What Is Equal Shared Parental Responsibility?

When making a parenting order, the Court presumes both parents are will have equal parenting responsibility in decision making for their children regarding serious long-term considerations such as education, medical treatment, where the children live and any changes to their name.

Equally, shared parenting responsibility does not mean that each parent will have equal time with the children, or shared care of their children.

The equal sharing of parenting responsibilities request the parents of a child to consult each other and make joint decisions on major long-term issues for the child.

The presumption of each parent sharing equal responsibility will not apply when there is a risk to the children due to family violence.

If the parents of a child cannot agree about the arrangements for the child the Court can make a Parenting Order about parental responsibilities.

Equal Shared Parental Responsibility

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What Are Parenting Orders And Can I Apply?

Parenting Orders are legal binding arrangements made by the Court regarding parenting arrangements of a children. The Order will usually cover:

  • Parenting responsibilities and decision making.
  • Who the children will live with.
  • The amount of time each child will be allowed to spend or communicate with the other parent.
  • Any aspects of regarding care, welfare or development of children.

If a parenting agreement cannot be determined out of court, then an application for Parenting Orders must be submitted to either the Federal Circuit Court (Federal Magistrates Court) or the Family Court.

A parenting order can be applied for by:

  • Either parent of the children.
  • The children.
  • A grandparent.
  • Any other person concerned with the care and welfare of the children.

A decision will be made through a court hearing and will be based on what is in the best interests of the child.

Child Custody Parenting Order Court Process

Pre-Action Procedures

Before an application for a Parenting Order can be filed with the Court, both parents must undergo “pre-action procedures” including the participation in dispute resolution. The Court will require a certificate from an accredited family dispute resolution practitioner before moving forward with the Order. The only exception to this is when there are circumstances involving family violence, child abuse or urgency.

The purpose of these pre-action procedures is to encourage a settlement out of court. This can save you and your family time, money and the emotional stress that is involved with going to Court. Since both parties are involved with the creation of a parenting solution, it is more likely that an agreement will be better for all, and longer lasting.

Pre-Action Family Mediation Procedure
Child Custody Interim Hearing Process Sydney

Interim Hearing Process

After you have filed an application to the Court, there is usually a period of one to three months before an interim child custody hearing will take place. An interim hearing is a short hearing that makes short-term orders about what will happen while the case awaits a Final Hearing and decision.

The Interim Hearing will cover more urgent issues which cannot wait until the Family Hearing. This can include the children’s living arrangements pending the Final Hearing, spouse maintenance, and more.

The judicial officer will begin by reading any affidavits (sworn statements) from the involved parties. The judge will often consider what the care arrangements were prior to separation, the current circumstances of the parents and children, and the parties respective plans for the future.

A decision will then be made concerning the arrangements of the children until the Final Hearing date.

The Interim Hearing is not designed to get to the bottom of any issue. It is put in place to make sure that arrangements are put in place that will protect the children from harm and maintain the children’s current relationships with the parents until the Final Hearing.

Final Hearing Process

The Final Hearing is designed to reach a final decision regarding child custody and any other family circumstances. The final Child Custody Hearing can take up to a year to 18 months and can depend on the Court in which the application will be heard.

At the final hearing, the Applicant (or their lawyer or Council) will outline the applicant’s case for a Parenting order. All parties who have provided sworn statements (affidavits) will usually be required to attend court to be cross-examined by the Respondent (or their lawyer or Council).

All evidence will be presented to the judge, including any relevant documents.

Any independent children’s lawyer, may also present evidence to the court and cross-examine witnesses.

In some cases, reports from an expert such as a court-appointed counselor, psychologist, or psychiatrist who have interviewed the parties and children, may also be presented to the court. In those cases, these experts may also be cross-examined by both parties.

Each party has the opportunity to give a final address to the Court making final comments in support of his or her case.

Child Custody Final Hearing Process Sydney
Final Family Law Court Decision

A Decision Is Made

The judge then makes a decision on child custody, after considering and weighing all of the evidence. Order for the arrangements for the children will then be made.

Sometimes this decision can be “reserved” until a later date. This is usually within 3 months after the conclusion of the final hearing.

These orders stand until the child’s 18th birthday or until further orders are made by the Court.

Are The Wishes Of The Children Considered?

The court will consider the wishes of a child when making a decision, however, a child will not be able to give evidence in a Family Law Court proceeding. A child’s wishes can be expressed in three ways.

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Comments Made To Other Witnesses

If a child expresses their wishes to a witness, then those comments can be considered evidence through the witness. Usually, evidence such as this is considered hearsay, however, in family law, this evidence is allowed for the court to consider.

Expressing Wishes To An Independent Children’s Lawyer

An independent lawyer can witness the child’s wishes, however they are no obliged to act on them.

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Through Interviews With A Family Reporter Or Consultant

A court appointed family reporter or consultant will provide a report to the court regarding any interviews with the children. The report will also include what the reporter or consultant considers in the best interest of the child.

The Court is not bound by the child’s wishes when making a decision.

For youth under the age of 12 their wishes usually don’t influence the decision of the Court, however, after the age of the 12, it is common for the Court to take more notice of a teenager’s wishes.

When the teenager is 16 or about, the court will often recognise that if an Order is against the wishes of a teenager, the youth.

Children And Divorce

Are you going through a divorce? It can often be an emotional time for the whole family.

When determining the living arrangements for each youth, the Court will aim to make a decision that is in “the best interests of the child”.

This decision will consider the wishes of both parents as well as the wishes of their offspring.

This process can often be very confusing and stressful.

Our family lawyers can help you get the best outcome for your family.

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What Is A Parenting Plan?

A parenting plan is a voluntary agreement entered into by both parents that sets out the parenting arrangements for children. It can cover day to day responsibilities as weak as how parents will agree and consult on important issues about the child.

Other parties such as grandparents or step parents can also be included in the parenting plan.

In order for a parenting plan to be recognised by the court, it must be in writing, dated and signed by both parents of the child.

A parenting plan can be changed at any time, however it must be agreed to by both parents.

A parenting plan is not legally enforceable, however parents can ask the court to make an Parenting Order in terms of that plan. The Parenting Order will then be legally binding and enforceable.

Parenting Plan

Child Custody Rights For Fathers

Child Custody Lawyers

It is a common assumption that the Court will favour the mother when determining child custody if the case goes to court.

This is not true.

The Court will always prioritise the child’s interests over the parent’s interest.

Whilst it may seem unfair that one child will spend more time with one parent, studies have shown that minors under the age of 5 or 6 need the stability of living consistently with one parent. Sharing that involves different evenings in different places is not considered in the best interests of the child.

However, it is also recognised that it is good for children to have frequent time during the day with the other parent in order to maintain the relationship. This is why when a child is younger, they will often spend more time with one parent, than the other, however, this can change when the child reaches school age.

When a youth gets a little older, their ability to cope with shared time between parents becomes better. This is where an equal time-sharing arrangement can be more appropriate.

How Do I Get Child Support?

If you are the primary carer of a offspring of the relationship, you can make a claim for child support from your former partner. The Child Support Agency is responsible for overseeing child support arrangements, and determining the amount of support should be provided. This decision is based on a formula that assesses each parents income, the number of children, and their living arrangements.

Find out more about child support services in Sydney.

Need A Child Custody Lawyer In Sydney?

Do you need an experienced family lawyer in Sydney to help with your child custody matter?

Our family law team believe that children are the most important element of any relationship.

Our team can provide you with advice regarding parenting and children issues and help you through this stressful time so you can focus on your family.

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