When it comes to your children and what is in their best interests, we understand that you have to fight for what is right.
Under the Family Law Act 1975, the children or child should have a meaningful relationship with both parents. However, a Court will always make an Order in relation to custody matters considered to be in the best interests of the child or children.
Each of the parties will both, more than likely, continue to share “equal shared parental responsibility”. However, when a resolution that benefits all parties cannot be agreed upon and mediation is required, a lawyer specialising in Children’s & Parenting Matters can step in to assist in the process.
This means that both parents have the right to share the responsibility of decisions regarding major long-term issues, such as choice of schooling, health and religious practices. The Court, however, in some circumstances, may remove parental responsibility from one party, or in extreme circumstances, both parents.
If parents or guardians cannot agree to what is in the best interests of the children, the parties must attend Family Dispute Resolution (FDR). FDR is a form of mediation which focuses on assisting the separating parties to come to their own agreements and resolutions regarding what is best for both their child and their future.
The parents or families in dispute must attend FDR under family law before any proceedings in court can be initiated. Cases that involve allegations of family violence, interventions orders, child abuse or other extremely urgent matters are exempt from family dispute resolution.
For those that require information, counselling, dispute resolution and group programs to help parties mediate their children and parenting matters, Oxford Partners can help to connect you with an appropriate third-party provider.
Note: Under the Family Law Act, in Australia, we do not use the terms “child custody arrangements”, instead we refer to this as Children’s & Parenting Matters. So, while “child custody” may be the more widely-recognised term, Children’s & Parenting Matters will be the preferred terminology when working through the custody process.
We often tell our clients that it would be in the children’s best interests for you to be able to co-parent, however, in some circumstances, that is not a feasible solution. If the two parents can come to their own arrangement, we can formalise that arrangement for you. In the event that parents cannot agree as to what is in the children’s best interest, we would issue proceedings on your behalf and take the matter to Court.
Some of these issues may be agreed between the two parents. However, in the event that this does not occur, it may be necessary for the parties to obtain a Family Report. Our “child custody” lawyers will sit down with you during your first consultation and explain the process with you in detail and what the potential outcome could be for you in this highly stressful time.
Children who are aged 14 and over have the right to choose their custodial parent. As parenting agreements also tend to consider emotional support as a factor for deciding who will be a child’s custodial parent, opinions expressed by children aged between 8-14 have still been known to impact custody arrangements. Parenting agreements can also be altered as children age to ensure custody arrangements will consistently support the child’s changing needs.
As joint custodial arrangements are reliant on a structure of co-parenting where parents largely agree on all aspects of their child’s upbringing, it is actually simpler organising sole custody arrangements over joint or shared custody. This isn’t to say sharing custody is impossible, however. Such agreements can be arranged and maintained with the use of family mediation sessions.
‘Best interests of the child’ is an integral term in the discipline of child custody law which is used to determine which of the child’s parents is best suited to provide for the child’s unique needs or care requirements. A parent can prove they have the best interests of the child by demonstrating they have the parenting skills, time availability, concerns for safety and wellbeing, and other elements of custodial responsibility. You can read more about proving the best interests of the child in our article on children’s matters.
It is considered a conflict of interests for the same Family Lawyer to represent both parties in any given case, including child custody cases. It is possible, however, for both parties to be represented by Family Lawyers from the same firm.
Separated parents can only file individual claims for Child Care Subsidy via Centrelink if they share the costs associated with child care. The Department of Social Services stipulates, however, that only one parent can make a claim on a care session at a time, so separated parents are unable to make claims on the same sessions of care. False claims may result in penalties such as fines or even a loss of custody.
A child custody agreement is created when the parents determine an arrangement for their children's future living arrangements. Usually, a child custody agreement is made in accordance with the best interests of the child, although it can differ from state to state. A family lawyer can advise you on the best way to create a child custody agreement that is the most suitable for you and your children.
Child custody arrangements can be settled outside of a court through mediation. Mediation is a process in which the parents meet with a mediator, such as a family lawyer, and try to come to an agreement that is suitable for both parties. If a settlement is not reached through mediation, the child custody issue will be determined in Family Court.
In Australia, parental rights are the rights and duties of parents to care for and make decisions about their children. Custody is one form of parental right where a parent has the right to make decisions about their child’s life, such as school and medical decisions. It's common misconception the parental rights of the mother supersede that of the father, but in reality, the parental rights of both parties are considered equally when determining child custody arrangements.
The best interests of the child is what determines the outcome of a child custody arrangement. There are a range of specific factors when determining the best interests of the child, such as parental capacity, cultural values and society views. For example, living with a parent with a stable job and time in their schedule to pick the child up from school who values kindness, acceptance and understanding could be in the best interest of the child.
A co-parenting agreement is an agreement that protects the rights and responsibilities of both parents. Child custody arrangements can be confusing for the parents involved and for their children, so it’s important to try to make sure the arrangement is as clear and simple as possible for all parties.