Child custody and parenting issues can be very stressful, even without considering the legal issues.
If you have separated – or are about to – it’s important to get legal advice as early as possible about your children’s living arrangements and child support. You can make child custody arrangements any time after you separate from your partner (and before or after divorce).
Parents can sometimes reach an agreement between themselves about their kids, but it’s important to know where you stand legally before making or seeking formal agreement through the courts.
Our family lawyers in Cairns are here to offer their services to help you reach a positive outcome in the best interests of your children. Contact our office for a confidential, obligation-free consultation with one of our lawyers.
There is no presumption that both parents should have equal time with children. The care arrangements that are appropriate for each child will depend on several factors, including the age of the child.
There is however a presumption that both parents should make decisions for their children together. This is referred to as “equal shared parental responsibility”. There are some circumstances in which this presumption will not apply.
If a court makes an order for “equal shared parental responsibility” then the court is required to consider whether it is appropriate to make an order that the child spends equal time with both parents.
No. It is a requirement that parents engage in mediation with a Family Dispute Resolution practitioner, prior to commencing court proceedings relating to their children. There are some exceptions to the requirement of attending mediation, for example, if there is a risk to a child or the matter is urgent and cannot wait until mediation has taken place.
It is recommended that legal advice is obtained prior to mediation to better understand the process, to understand the law surrounding the issues to be discussed and to help you get the most out of your mediation.
Even if you are unable to resolve all issues at mediation, we often find that it will at least narrow the issues in dispute and provide insight into the best way forward to resolve your matter.
Whilst children do not get to make decisions about their care arrangements, the court can take their views into account. How much weight a court will place on a child’s views will depend on their age, maturity, and whether the court considers those views have been influenced in any way.
A child should not be asked directly by a parent what care arrangements they want. A child’s wishes are ascertained through a non-intrusive interview process with an independent person qualified to have these discussions with children. This may include an interview to prepare a family report, or by a mediator conducting a child-inclusive mediation. More information on these processes can be obtained in an obligation free consultation with one of our family lawyers.
There are two ways in which a parenting arrangement can be formalised, the first is by entering into a parenting plan, the second is by applying to the court for consent orders.
There is no requirement that parenting agreements are formalised. There are both advantages and disadvantages to parenting plans and consent orders. For example, a parenting plan is not legally binding and cannot be enforced by the courts, they can, however, be easily changed and used as evidence in court proceedings. Whereas, consent orders are legally binding and enforceable, however, are difficult to change without the consent of the other parent.
The best way to formalise your agreement will depend on the agreement reached and your family circumstances. We recommend obtaining advice from a family lawyer prior to formalising your agreement.
The majority of parenting matters can be resolved outside of court, through negotiation or mediation between the parents.
Unfortunately, there are some circumstances where the parents cannot agree on the arrangements for their children which results in one parent commencing court proceedings. If court proceedings are commenced, that does not mean that the court will ultimately determine the arrangements for your children, there will be further opportunity for parents to reach an agreement and to continue negotiations throughout the court proceedings.
If court proceedings are commenced, a lawyer is often appointed to represent the children, this lawyer is referred to as the “independent children’s lawyer”. This lawyer is often crucial in assisting the parents to reach agreement in the best interests of their children.
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