If parents can’t agree on where the children should be living, the court will make a decision about where the children should live. For the court to make this decision, they’ll look at the relevant factors in the Family Law Act to make this decision.
All child custody decisions are focused on ensuring the best interests of the child are made. Generally speaking, it’s often in the child’s best interests to have a loving relationship with both parents, but arranging such relationships can be the main challenge in resolving a dispute.
Child custody is often one of the most difficult issues a person may face in their lives. Justice Family Lawyers assures you that your appointed solicitor will be working closely with you on your case, you’ll be able to get the best parenting agreement for you and your children.
Research has shown that children in separated families are able to have full loving relationships with both parents and if both parents have a positive outlook and do not involve the children in the dispute.
Where Will The Children Live?
If parents can’t agree on where the children should be living, the court will make a decision about where the children should live.
For the court to make this decision, they’ll look at the relevant child custody laws in the Family Law Act to make this decision which may include:
a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
There are other things that the court looks at when making a decision about physical custody of the children.
They may ask the child themselves about their views and where they would like to live.
The court may also look at the relationship that the child has with each of the child’s parents and extended family members and as a result put the child in the care of people that they are comfortable with.
The court may also look at the history of the parents and make a decision based on whether or not they have taken opportunities to spend time and communicate with their child. This is why we advise our client’s to consistently take notes of what they and their ex-partners have been doing before child custody matters go before the court.
The past will be taken into consideration, however, the future of the child is also largely important. An assessment will be made about the ability of the parents to provide for the upcoming needs of the child, including the ability to be available financially, emotionally and intellectually for the child.
Parenting Plans & Court Orders
If the parents can agree on where the children will live and the visitation schedule of the other parent, then either a parenting plan or consent orders should be entered into.
Parenting plans are written agreements that set out the arrangements for the children. They include details about where the children will live, what days they will spend with the other parent, what will happen during school holidays and special events such as Christmas and birthdays and any other matter relevant to the co-parenting of the child.
A parenting plan is not a legally enforceable document.
To draft a parenting plan appropriately, you can refer to section 63C of the Family Law Act 1975.
If you complete an application for consent orders and attach a copy of your parenting plan, you could then have the parenting plan approved by the court as a Consent Order.
This is a legally enforceable agreement and holds the same weight as a Parenting Order made by the Court after a hearing.
Parenting plans are often entered into after negotiations between solicitors or after a successful mediation; however, as experienced child custody lawyers, we always recommended that this agreement be submitted to the courts for the purposes of making it an enforceable agreement.
Changing Parenting Plans & Court Orders
Where one parent is unhappy with a particular aspect of their joint custody arrangement they should firstly seeking legal advice.
You need to be careful that your claim isn’t dismissed immediately because the general rule is, once a decision has been made in the courts, it will not be changed.
The Court will need to be satisfied that there has been a material or significant change of circumstances for it to be re-heard in court. This is quite commonly referred to as the rule in Rice & Asplund.
The court doesn’t want to continue listening to the same issues about the same children time and time again. However, the Court understands that circumstances in children’s lives will change over time.
As one of the top firms in Sydney for child custody lawyers, we always recommend our clients to attend mediation when trying to resolve a dispute. This can be difficult if there is resentment or if one party is not cooperating, which may leave you with no option but to make an application to change an existing parenting order.
When a relationship breaks down, communication between the parents becomes difficult and the children can be used as tools to manipulate the other party.
If you are being denied visitation or access to your children, there are different options are available to you depending on your situation.
If you have Court Orders in place – you can try and attend a dispute resolution centre to have a mediator try and resolve the problem. If this doesn’t work, you will need to get a certificate from the mediator saying that you made a genuine attempt to resolve the matter but no solution could be made.
You then need to file the certificate with a Contravention Application stating that the other parent has breached the original Court Orders. The court will then look at the breach and could potentially enforce the Orders and punish the other parent for breaking them.
If you have a parenting plan – you may have a parenting plan that outlines each parents commitment to the children. If this is breached, you should consider starting an Initiating Application in the Federal Circuit Court.
We recommend that upon separation you immediately come to an agreement as to how the children will be spending their time with each parent. This will be in line with best family law practice.
There are two ways that you can document your agreement, one is through a Parenting Plan, the second is through Consent Orders.
The worst thing you can do is to not write down your agreement – this will definitely lead to arguments and problems as there will be confusion and miscommunication.