Child Custody FAQs

Our Family Lawyers Sydney and NSW have answered some frequently asked questions about Child Custody NSW Laws below.

Does shared parental responsibility amount to both parents spending equal time with the child?

This does not necessarily mean each parent gets to spend equal time with their children. However, the amendments to the Family Law Act would ordinarily warrant this to be considered as a starting point in most cases. The practical reality is that these matters are determined on a case by case basis. 

The best interests of the child does involve the child spending meaningful time with both parents, wherever possible, however, this of itself does not mean equal time. Parental responsibility refers to the day to day and long term decisions that are made on behalf of the child. This means that the Court can order shared parental responsibility even when equal time is not requested or ordered. There are different considerations at play when dealing with the two issues and they do not necessarily go hand in hand.

What impact do parents’ attitudes towards parenting and each other have towards parenting agreements/orders?

When determining the "reasonable practicality" of the child spending equal or significant and substantial time with both parents, the Court can take into account the traits of the parents considered in determining what is in the best interests of the child.

The Court explicitly takes into account the behaviour of parents towards each other and towards the child when determining what is in the best interests of the child in constructing parenting orders. Accordingly, the behaviour of parents is relevant and can be important to the outcome of parenting orders, and it is not inconceivable that estranged spouses will take this opportunity to keep scrupulous records of every minor infraction that the other parent makes in relation to parenting.

What about child maintenance/child support?

Child maintenance or child support can be sought either via the Family Court, be agreed upon in a Binding Financial or Termination Agreement or through the Department of Human Services.

We already have an arrangement in place for our children. Why do we need it in writing? 

Sometimes arrangements for the care of children that are informal or ‘verbal’ work quite well. However such arrangements are based on the co-operation of both parties. They are not enforceable and either party can refuse to adhere to the agreement at any stage. If something happens and the relationship sours, such arrangements tend to encounter problems. This is why it is important to have arrangements relating to children put in writing and preferably, recognised by the Court.

How can I get the children to live with me? (sole custody)

Generally, having a child live with only one parent is not considered in the best interests of that child unless the other parent is an unfit parent and/or there is a risk of violence.

This does not mean that where one parent has had very little to do with a child that they will immediately be able to have that child spend time overnight with them, but it does mean that the court generally considers it in the best interest of a child to spend significant time with both parents.

Remember that having the Court decide the care arrangements for your children should always be the last resort. Arrangements for the care of your children can usually be reached through negotiation and/or mediation and these approaches will allow you to express your concerns regarding the length of time and manner in which your child spends time with the other parent.

The current arrangements/orders for the care of my children aren’t working/ are no longer appropriate. What can I do?

If you do not presently have orders in place in relation to the care of your children, now may be the ideal time to negotiate a new regime and have it endorsed by the court.

If you presently have orders in place and they are no longer appropriate (in the best interests of your children) you may have avenues available to you to seek an amendment of the orders. The principles that are applied in determining whether to amend the orders remain aimed at ensuring that the best interests of the children are met. It is important to realise that where orders have been in place for a long time and it appears that it meets the interests of the children, there will be a need to demonstrate why deviation from the status quo at this stage is in the best interests of the children.

The other parent isn’t adhering to the arrangement. What can I do?

Unfortunately, where you have an informal agreement with the other parent, it is not enforceable. It is based purely on the co-operation of both parties, and when this co-operation breaks down, often either or both parties cease to act in accordance with the agreement.

Where you have an informal agreement that just isn’t working due to the other parent’s behaviour, it may be an ideal time to consider getting a formal agreement in place. Remember that going to court does not always mean a contested ‘battle’. If you successfully come to an agreement with the other parent Consent Orders may be sought from the court. These are just as enforceable as the orders that will be made at the end of a contested hearing, but are generally much less expensive and time consuming to obtain.

The parent who the child lives with wants to move with my children. What can I do?

For a variety of reasons, it is not unusual for one parent to wish to relocate after the breakdown of a relationship. However, difficulties often arise when the children live with that parent and the relocation will cause significant difficulty for the other parent to spend time with the children.

There are a variety of options available to resolve the problems that relocation may cause in relation to the non-relocating parent spending time with and communicating with the children.  If one parent has unilaterally moved with the children, the non-relocating parent may initiate a ‘recovery’ application seeking that the court order the return of the parent and the children.

Similarly, where there are orders already in place and the relocating parent is contravening those orders by relocating, the other parent may initiate a Contravention Application. Alternatively, amendment of the existing orders may be sought if it appears that the existing orders will no longer give effect to the best interests of the children in light of the relocation.

We have orders in place but the other parent isn’t adhering to them. What can I do?

After all the time and effort spent on obtaining orders in relation to the care of children, it can be extremely stressful if those simply aren’t followed by either parent. Where a parent contravenes court orders in relation to the care of the children, the other parent may initiate a Contravention Application. The aim of such an application is enforce the present orders, and, where appropriate and necessary, to impose some sanction on the contravening parent.

However, if there is something fundamentally impractical in the orders, and they are simply too difficult to adhere to, it could be that the existing orders no longer serve the best interests of the children. In this event, it may be that filing an application at court for amendment of the existing orders would be an appropriate approach to resolve the problem.

Remember that going to court does not always mean a contested ‘battle’. If you successfully come to an agreement with the other parent Consent Orders may be sought from the Court. These are just as enforceable as the orders that will be made at the end of a contested hearing, but are generally much less expensive and time consuming to obtain.

The other parent hasn’t had much to do with my child and they want to spend time with the child, including overnight. What can I do?

It is not uncommon for a parent to take a considerable period of time to decide to take an active part in their child’s life. It has been our experience that often these scenarios are extremely emotional, and feelings of protectiveness, resentment and anger are common from the parent who has lived with the child up until that point.

Essentially, the Court considers as a starting point that in most cases, the best interests of the child involves both parents having meaningful shared input into major decisions that affect the child. As the primary concern of the Court is to promote the best interests of the child, the Court must give effect to this unless doing so would expose the child to family violence or a risk of harm to the child. So where a previously uninvolved parent decides to become involved in a child’s life, if it is in the best interests of the child, the court is likely to encourage such involvement.

Often the conflict arises around whether the child should spend lengthy (overnight) periods of time with the other parent. There are various options available in this situation such as slowly increasing the time once familiarity and comfort have been established with the child. Other options include the child beginning to spend supervised time with the parent as a starting point.

At Prime Lawyers we are experienced in dealing with child custody cases. Whether you are considering commencing child custody proceedings, or proceedings have been issued against you there is an array of issues you need to consider. Child custody ‘battles’ can be a complex and emotional process. Our lawyers strive to make this process as simple as possible.

If you require assistance with a child custody matter or parenting dispute, our experts at Prime Lawyers - Family Law Division can help. Contact us to make an appointment with a family lawyer at your nearest Prime Lawyers office. 

Child Custody Disputes - Parenting Orders

Following separation, arrangements for children aged under 18 years are determined by agreement between the parents, or else in accordance with the provisions of the Family Law Act 1975. A Parenting Order is an Order made under the Act that deals with one or more of the following matters set out in section 64B(2) of the Act:

Parenting Orders can be made by the consent of both parents (“Consent Orders”) or, where agreement can’t be reached, by the Court. Parenting Orders are important to have in place where conflict may arise due to uncertainty. Once Orders are in place, both parties must comply with them or risk an action for contravention (breach). The penalties for contravention include a fine, or a prison sentence, or both.

It does not matter whether a child is born within our outside of a marriage or de facto relationship or whether the parents were ever in a relationship with each other, all children have the same standing under the Family Law Act. The terminology of the Act has been changed over time in a manner that demonstrates a move away from children being treated almost as “objects” and further, towards a more child-focused approach. Rather than using the parent-focused terms of “custody” and “access”, the family law now uses child oriented terminology and refers to whom the child “lives with” and with whom the child will “spend time”. This terminology aligns with the objects of the legislation as far as it relates to children.

In deciding whether to make a particular Parenting Order in relation to a child, the Court must regard the best interests of the child as the paramount consideration (s60CA of the Act).

As stipulated in s60CC Family Law Act, in determining the ”best interests of the child”, the Court is to consider the need for a child to have a meaningful relationship with both parents and also the child’s need to be protected from harm.

In some rare cases it may be determined that it is not in a child’s interests to have contact with one of their parents and it may be ordered that the child spend little or even no time with that parent.

At Prime Lawyers we aim to assist you to address child custody and parenting disputes quickly, cost effectively and preferably out of court. This usually means that negotiation will be a first step, and if that fails either private or court appointed mediation. If all else fails, or if the matter is urgent then court action may be the most appropriate approach. Examples of situations requiring urgent court action are:

In these circumstances negotiation is not likely to resolve the matter satisfactorily and it is likely to be crucial that the matter is put before the court quickly to prevent it from getting out of hand. Our family lawyers always are always mindful that timing can be of the essence in these circumstances and will ensure that urgent action is taken every time.

Overall, the law encourages parents to try and settle parenting disputes between themselves, even once proceedings are commenced.  A disputed parenting matter can take more than 2 years to be finalised by the Courts if the parents cannot reach an agreement at any time during proceedings. Our family lawyers are experienced in matters that involve protracted litigation and have assisted many clients in obtaining favourable results at the end of disputed hearings. Notwithstanding our success after lengthy proceedings and disputed hearings, our real success lies in our ability to assist most clients to settle their disputes and thus reducing costs and the emotional strain of hard fought litigation. 

If you require assistance with a child custody dispute or obtaining parenting orders, our experts at Prime Lawyers - Family Law Division can help. Contact us to make an appointment with a family lawyer at your nearest Prime Lawyers office.

Parenting Orders - Who Can Apply?

A Parenting Order is an Order made under the Family Law Act 1975 that deals with one or more of the following matters set out in section 64B(2) of the Act:

- The person or persons with whom a child is to live;

- The time a child is to spend with another person or other persons;

- The allocation of parental responsibility for a child;

- If 2 or more persons are to share parental responsibility for a child — the form of consultations those persons are to have with one another about decisions to be made in the exercise of that responsibility;

- The communication a child is to have with another person or other persons;

- Maintenance of a child;

- The steps to be taken before an application is made to a Court for a variation of the order to take account of the changing needs or circumstances of: a child to whom the order relates; or the parties to the proceedings in which the order is made;

- The process to be used for resolving disputes about the terms or operation of the order;

- Any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.

Under section 65C of the Family Law Act 1975, a Parenting Order in relation to a child may be applied for by:

- Either or both of the child's parents; or

- The child; or

- A grandparent of the child; or

- Any other person concerned with the care, welfare or development of the child.

The majority of parenting proceedings involve an application by a parent. Parents of the child include biological parents, adoptive parents, parents of children artificially conceived and parents of children born under surrogacy arrangements.

Applications by children for Parenting Orders are uncommon, presumably because there will usually be little utility in making Parenting Orders in relation to children who have enough maturity and independence to seek Orders themselves. In one unusual case however, a 17 year old child obtained an ex-parte Order (ie, in the absence of other parties) by way of an injunction, restraining her parents and stepfather from removing her from Australia against her will: Kandal v Khyatt (2010).

Since the year 2000, a grandparent of the child has been specified in the legislation as being able to apply for a Parenting Order. Grandparents could previously make applications under the category ‘any other person concerned with the care, welfare or development of the child’ however, a separate category for grandparents must have been inserted to remove any possible doubt. Applications by grandparents are common.

Applications by any other person concerned with the care, welfare or development of the child has proven to be the most difficult category. In one case, the Court held that a woman who had been a friend and partner of the child's mother was entitled to make an application, over the objections of both the mother and the child's father. The applicant had had previous contact with the child and had undertaken aspects of a carer's role in relation to her: Kam v MJR (1998).

There has been some difference of opinion about whether applicants under this provision need to have had prior involvement with the child. On a narrow interpretation, a person who is genuinely concerned with the care, welfare or development of the child may be precluded from applying for a Parenting Order; for example, an aunt or uncle who resides overseas and has therefore not had previous care of the child, but wishes to apply for a Parenting Order after the death of a parent or both parents.

The Court is challenged with the competing issues of ensuring that children’s issues come before the Court so that they can be resolved according to law, while preventing frivolous applications from being made by an applicant who has a mere interest in, or concern about, the child.

Notwithstanding this grey area and irrespective of who applies for a Parenting Order, under section 65C of the Family Law Act 1975 threshold test for standing to bring an application is created and is to be determined on the individual facts and circumstances of each case. Once the threshold stage has been passed, the individual facts and circumstances of the matter again must be viewed in order to determine whether or not a parenting order is appropriate and in the best interests of the child.

The bottom line will always be that a Parenting Order will not be made, no matter who it is applied for by, if it is not considered by the Court to be in the best interests of the child.

If you require legal assistance in relation to an application for parenting orders or a child custody matter, our experts at Prime Lawyers - Family Law Division can help. Contact us to make an appointment with a family lawyer at your nearest Prime Lawyers office.

We have offices in Sydney, Parramatta, Chatswood, Sutherland and Wollongong.

Application to Vary Parenting Orders

Under section 64B(1)(b) of the Family Law Act 1975, a Court can make an Order varying an existing Parenting Order, or part of a Parenting Order. This is because of the view that Parenting Orders are never “final”. However, where the Court has made final Parenting Orders it will not always readily re-open the matter, and the Court always retains jurisdiction to decide. 

In the case of Rice v Asplund (1978), a Parenting Order was made granting the father custody of the child of the marriage. Two years later, a further hearing as to custody resulted in an Order reversing the previous Order and granting custody to the mother. There was then an appeal to the Full Court by the father. It was submitted on behalf of the father that in order to justify the review of the Parenting Order the mother should have satisfied the Court that there had been substantial change in the circumstances since the earlier Order.

The question of what constitutes a “substantial change in circumstances” has been considered by many cases, and recent cases have resolved this question by upholding the principle that the child’s best interests must be the paramount consideration in making a Parenting Order, including an Order varying an existing Parenting Order. 

Some examples of changed circumstances resulting in a variation of Parenting Orders include:

• The proposal of a custodial parent to take a child out of the country to permanently live: Fryda v Johnson (1979);
• The remarriage and recovery from prior mental illness by the non-custodial wife: Houston v Sedorkin (1979);
• Remarriage and stabilising of the life of the non-custodial wife: Rice v Asplund (1978); F v N (1987);    
• Failure of a party to disclose an intention to take the children out of Australia, such an intention having been formed at the time of the original hearing: Mobasser v Nankervis (1982).

Furthermore, it may sometimes be the case that despite there being a substantial change in circumstances, further litigation by allowing an application to vary existing Parenting Orders to proceed may not be in the best interests of the child. 

In the case of Marsden v Winch (2009) the Full Court considered whether to allow an applicant to present further evidence to establish that there has been a relevant change in circumstances before deciding whether to proceed to a full rehearing, and indicated that the Court must look at the following matters in deciding whether to allow an application to vary existing Parenting Orders:

• The past circumstances, including the reasons for the decision and the evidence upon which it was based.
• Whether there is a likelihood of Orders being varied in a significant way, as a result of a new hearing.
• If there is such likelihood, the nature of the likely changes must be weighed against the potential detriment to the child or children caused by the litigation itself. Thus, for example, small changes may not have sufficient benefit to compensate for the disruption caused by significant re-litigation.
• Whether or not a proposed Application to Vary Parenting Orders has merit is not always cut and dry. 

Relocation

Relocation cases arise when one parent moves away with a child, who lives with them, without consultation or discussion with the other parent or any arrangements as to the future interactions between the child and the parent left behind. Generally termed “relocation cases”, they, in fact relate to one aspect of the type of parenting orders made by the Court.

Parents relocate for a variety of reasons such as employment, family, new relationships, health, escaping an abusive partner and so on. 

Unless there is a Court order, parents generally share parental responsibility equally and consult with each other when making decisions about a child’s long term care welfare and development. 

Parenting responsibility means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children. (Section 61B). You do not need a Court order for this.

When one parent decides to unilaterally make changes to a child’s living arrangements that make it significantly difficult for the other parent to spend time with the child then the Court can make a parenting order to alter shared parental responsibility.

If there is already a parenting order in place, for example, by way of Consent Orders made between the parties, preventing the parent with whom the child lives with from relocating without the consent of the other, then to relocate the child without the other parent’s consent will result in a contravention of the existing order.

The starting point in most relocation cases, as with parenting matters generally, is that both parties must genuinely attempt to resolve the dispute, complying with pre action procedures such as mediating. However, there are circumstances where the Court may hear an urgent application, even in the absence of the relocating parent; for example, where one parent appears to be fleeing the country with the child or children.

If an application is made, the Court will, when making a parenting relocation order either permit or refuse a party from relocating, having regard to the best interests of the child as the paramount consideration ( Section 60CA).

What is in the best interests of the child is determined by regard to Section 60CC which sets out “primary” and “additional” considerations a Court must have regard to.  

Primary considerations include the benefit to the child of having a meaningful relationship with both of the child's parents  and  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 a range of additional considerations including the child’s views, the nature of the child’s relationship with each of its parents and the extent to which each of the child's parents have taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child.

The Court then has to balance the primary and the additional considerations to derive an outcome that is in the best interests of the child.

Types of orders the Court has made in relocation cases include: 

• that the child lives with the parent who wishes to relocate and spends time with, and communicates with, the other parent;
• that the child lives with the non-relocating parent and spend time with, and communicates with, the other parent;
• that the child lives equally with the parents in the existing locale, or lives with one parent and spends substantial and significant time with the other parent in the existing locale; 
• the non-relocating parent moves to the venue chosen by the relocating parent, and the child lives equally with the parents or lives with one parent, spends time with the other parent. 

The Court, in making a parenting order, or proposing to make an order, must apply the presumption of equal shared parental responsibility (Section 61D), unless excluded by reason of abuse or family violence or there is evidence to show that it is not in the best interests of the child for the parties to have equal shared parental responsibility for a child. 

Because each case presents different facts and issues for determination, no precise indicia can be categorically laid down as mandatory requirements requiring more or less weight in a relocation case. Obtaining advice from an experienced family lawyer can assist you in determining the strengths of a relocation application or, an application for orders or variation of orders where the other party is seeking to relocate.

If you require assistance with a child custody dispute or a relocation matter, our experts at Prime Lawyers - Family Law Division can help. Contact us to make an appointment with a family lawyer at your nearest Prime Lawyers office. 

Parental Responsibility

As discussed in our article entitled "Child Custody Disputes - Parenting Orders", a Parenting Order can be made by consent, or where agreement cannot be reached, by the Court. A Parenting Order can deal with matters such as the parent with whom a child is to live and how much time a child is to spend with the other parent. Reforms to the legislation came into operation on 11 June 1996, and these reforms included a complete change in the terminology used to refer to the legal position of parents in relation to their children, and the types of Orders which the Court might make in resolving child custody and parenting disputes. 

In particular, the terms “guardianship”, “custody” and “access” were removed from the Family Law Act 1975 in 1996 and in 2006 further reforms removed the terms “residence” and “contact”. This terminology was replaced with “lives with”, “spends time with” and “communicates with”. Previously, the Court usually made a custody order in favour of one parent and an access order in favour of the other parent, whereby the parent who had custody had residence rights and the parent who had access had only contact rights. The parent who had custody of a child was assumed to have all powers, authority and responsibilities in relation to the day-to-day care of the child. 

A Parenting Order can also deal with the allocation of parental responsibility. This is defined under section 61B as meaning ‘all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.’ In absence of any Court Orders, both parents have parental responsibility until a child turns 18 (s61C Family Law Act 1975). Parental responsibility refers to decision-making power in relation to major decisions for the long-term care, welfare and development of the child. The Family Law Act under section 4 defines “major long-term issues” in relation to a child as meaning issues of a long-term nature such as issues about: the child's education (both current and future); the child's religious and cultural upbringing; the child's health; the child's name; and changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent.

The 1996 reforms introduced the concept of ‘parental responsibility’ and provided that each parent has parental responsibility, under section 61C of the Act. However it did not provide that parents have joint parental responsibility, or that they “share” parental responsibility. Therefore it left open the question about whether the law imposed an obligation on parents to consult, or simply make decisions jointly.

In 2006, the presumption of ‘equal shared parental responsibility’ was introduced to the legislation under section 61DA. This means that now, when making a Parenting Order, the Court must apply a presumption that it is in the best interests of the child for his or her parents engage in consultative decision-making by having equal shared parental responsibility. However, parents do not need to consult for every decision in relation to a child. Under section 65DAC of the Act, decisions about issues that are not major long-term issues can be made by the parent with whom the child is spending time without a need to consult the other parent. This will mean that the parent with whom the child is with at a particular time will usually not need to consult on decisions about such things as what the child eats or wears because these are usually not major long-term issues (s 65DAE of the Act).

The effect of a Parenting Order that provides for shared parental responsibility is that it requires each person to consult the other person in relation to the decision to be made about a major long-term issue; and to make a genuine effort to come to a joint decision about that issue. It does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.

However, the Court acknowledges that in some cases it may not be appropriate for parents to have equal shared parental responsibility. The presumption will not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in: abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or family violence (s61DA Family Law Act 1975). Furthermore, the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child. For example, in the case of Handley v Tranter (2007) it was held that it would not be in the best interests of the child for the parties to have equal shared parental responsibility as the parties could not effectively communicate. 

In child custody and parenting disputes, the areas of conflict often revolve around where the children will live and how much time the children will spend with the other parent. If a Parenting Order is to provide that a child’s parents are to have equal shared parental responsibility then the Court must, under section 65DAA of the Act, consider whether it would be in the best interests of the child to spend equal time with each of the parents, and whether equal time with each parent is reasonably practicable having regard to how far apart the parents live from each other; the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and the impact that an arrangement of that kind would have on the child. If equal time would be in the best interests of a child and is reasonably practicable, then the Court must consider making such an Order. However, if the Court does not make such an Order, it must consider whether the child spending substantial and significant time with each of the parents would be in the child’s best interests and reasonably practicable. 

If you require assistance with a child custody dispute or obtaining parenting orders, our experts at Prime Lawyers - Family Law Division can help. Contact us to make an appointment with a family lawyer at your nearest Prime Lawyers office.

We have offices in Sydney, Parramatta, Chatswood, Sutherland and Wollongong.

Parenting Plans

Separating parents have a duty to make a genuine effort to reach agreement about the future arrangements for their children. Reaching agreement is not always easy, but assistance is available through Family Lawyers, counsellors and mediation specialists.

What is a Parenting Plan?

When an agreement is reached between separated parents, with the intention of not applying to the Family Law Courts for Orders, it is always best to put it in writing to avoid any misunderstandings. An agreement in writing about parenting arrangements for children aged under 18 years is known as a Parenting Plan.

A Parenting Plan can deal with issues including where a child will live; the time that a child will spend with each parent (and with other people such as grandparents); and any other aspect of the care, welfare and development of a child.  

Parenting Plans are often a quick and inexpensive way for parties, who are essentially already in agreement, to put informal arrangements in place that are reduced to writing and therefore, easy to follow. 

There is often confusion as to whether Parenting Plans are legally enforceable. In essence, a Parenting Plan is not a legally enforceable agreement, unlike Orders made by the Court. However, a Parenting Plan can be relied on in court proceedings as long as it complies with the requirements of the Family Law Act. Those requirements are that the plan is in writing, was voluntarily entered into and is signed and dated by both parents.

A Parenting Plan can be varied or revoked by parents, but only be agreement. Parenting Plans can also be registered with the Court. The Court can set aside a registered Plan, or vary or revoke parts of the Plan.

Although the Family Law Act encourages parents to enter into parenting plans if an informal agreement can be reached, it also makes it clear that these types of agreements are not enforceable. In doing so, the Act also clearly states that "parents who seek enforceable arrangements require court orders".

Some agencies that facilitate negotiations between parents and assist in drafting parenting plans may insist that the plan is legally enforceable.  Clearly, this is not technically correct and for parents who wish to ensure that they have enforceable arrangement in place should seek legal advice with a view to obtain Court Orders (whether by Consent or otherwise).

A family lawyer can assist you in drafting a Parenting Plan and advise you of the matters that are required to be taken into account in doing so and also, ensure that the plan complies with the requirements of the Family Law Act. Where parties are unable to reach agreement or, require something that is enforceable, a family lawyer can assist you in obtaining enforceable Court Orders.

What are Parenting Orders?

To be certain that an arrangement between parents is legally enforceable, the parties can apply to the Family Court to have Orders made in the same terms as the Parenting Plan. These Parenting Orders are known as Consent Orders, because they are made with the consent of both parties.

Settling parenting matters by Consent Orders is much quicker, much less expensive and much less stressful than asking the Court to decide what Orders to make. 

Our experienced Family Lawyers provide detailed advice to separating parents who are considering entering into either a Parenting Plan or Consent Orders. Often we advise clients who are negotiating through counselling or mediation, or who otherwise have been able to reach in-principle agreement in discussions with the other parent.

Even in difficult matters, agreement can be achieved provided both parents are prepared to negotiate, and importantly, to consider the child’s best interest.

Once agreement is reached, our Family Lawyers are able to prepare the necessary documents so that the agreement will be legally enforceable. 

If you need assistance with a parenting matter, our experts at Prime Lawyers - Family Law Division can help. Contact us to make an appointment with a family lawyer at your nearest Prime Lawyers office.

What Are "The Best Interests of the Child"?

In deciding whether to make a particular Parenting Order in relation to a child, the Court must regard the best interests of the child as the paramount consideration (s 60CA of the Family Law Act).

What are ‘the best interests of the child’?

In determining what is in the child’s best interests, the Court must take into account the considerations set out under section 60CC of the Family Law Act. The primary considerations are:

- The benefit to the child of having a meaningful relationship with both of the child's parents (i.e., the value of parental involvement); and

- The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence 

The Best Interests of the Child - Primary Considerations

In deciding whether to make a particular Parenting Order in relation to a child, the Court must regard the best interests of the child as the paramount consideration (s60CA of the Family Law Act). In doing so, it must take into account the considerations set out under section 60CC of the Family Law Act. This is divided into "primary considerations" and "additional considerations". This article summarises the primary considerations. The more extensive additional considerations are outlined here.

The two primary considerations are:

- The benefit to the child of having a meaningful relationship with both of the child's parents (i.e., the value of parental involvement); and
- The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (i.e., protection against family violence and child abuse).

The legislation clarifies that in applying the two primary considerations, the Court is to give greater weight to the need to protect the child from harm.

Meaningful Relationship with Parents

The first of the two primary considerations is “the benefit to the child of having a meaningful relationship with both of the child’s parents”. The adjective “meaningful” seems to indicate that it was not intended to focus on the parental relationship as a factor in itself, but rather on its significance for the child or children in question. For example, in a case where a father has had no contact of any kind with a child from birth to, say, aged 7, this primary consideration does not suggest that there is necessarily a benefit to the child merely from the biological father-child relationship. If, however, there is a prospect of the father becoming involved in the child’s life, then the effect of this appears to be that the Court would give careful consideration to the possible benefit to the child if that relationship, now purely biological, were to become meaningful.

It is important to note that the primary consideration of “the benefit to the child of having a meaningful relationship with both of the child’s parents” indicates that the point is whether the relationship is meaningful for the child, not for the parent as such. Thus, the Court does not act on a superficial view that any arrangement that would increase a parent’s involvement must be in the child’s best interests. For example, in some circumstances, it may not be deemed to be in a child’s best interest where such involvement exposes the child to intense conflict. In the case of Mazorski v Albright (2007), the Court considered that a meaningful relationship is one which is “important, significant and valuable to the child’; the word ‘meaningful’ is ‘a qualitative adjective, not a strictly quantitative one”. The words “benefit” and “meaningful” require the court to focus on the particulars of each case, and to assess the quality of the parent-child relationship.

Protecting the Children from Harm

The second of the two primary considerations is “the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence”. Family violence may be a factor of great importance in assessing the welfare of children. It is now well established that family violence may harm children even when it is not directed at them. If they witness violence between adults, or if they are implicated in it in various ways, it can cause great fear, stress, and damage. Similarly, violence between family members can adversely affect children's health and development in a variety of ways. 

Apart from such consequences, the use of violence to achieve one's objectives in family relationships reflects very poorly on a parent's attitudes to parenting and capacity to discharge parental responsibilities. It is important to note that the Court’s task is not to determine the truth of an allegation of child abuse, neglect or family violence in the way that a criminal Court must do, but to treat the best interests of the child as the paramount consideration. As established by the leading authority, the case of M v M (1988), the Court will not make a Parenting Order, if to do so would expose the child to an “unacceptable risk” of abuse.

In some circumstances, if a parent makes repeated groundless allegations of child abuse, leading to the child being separated from the other parent, the Court may consider that such repeated allegations could create an unacceptable risk of emotional abuse, and in such cases the Court may determine that it would be in the child’s best interests to live mainly with the other parent. An example of this is the case of Ruth v Hutton (2011) where the 5 year old child seemed to have had a good relationship with the other parent. However, such a reversal of Orders pertaining to who the child is to live with is more problematic where the child has a poor relationship with the other parent.

Finally, since 2011 the Court is required to give greater weight to the second primary consideration of the need to protect the child from physical and psychological harm. Therefore, even though there is great importance placed on the benefit to all children in having a meaningful relationship with both of their parents, greater weight is to be given to the child’s protection. Therefore, where child safety is a concern, the Courts are required to consider Orders that protect the child from harm as the priority consideration.

If you require assistance with a child custody dispute or obtaining parenting orders, our experts at Prime Lawyers - Family Law Division can help. Contact us to make an appointment with a family lawyer at your nearest Prime Lawyers office.

We have offices in Sydney, Parramatta, Chatswood, Sutherland and Wollongong.

The Best Interests of the Child - Additional Considerations

In deciding whether to make a particular Parenting Order in relation to a child, the Court must regard the best interests of the child as the paramount consideration (s60CA of the Family Law Act). In doing so, it must take into account the considerations set out under section 60CC of the Family Law Act. This is divided into "primary considerations" and "additional considerations". This article summarises the additional considerations. The primary considerations are outlined here.

1. The child's views

Under section 60CC(3)(a) the Court is now required to consider any views expressed by the child and any factors, such as the child’s maturity or level of understanding, that the Court thinks are relevant to the weight it should give to the child’s views. 

How much weight the Court gives to the child's views can differ from case to case and generally, the younger the child, the less weight will be placed on that child's views.

Read more on the consideration of the child's views here.

2. The child's relationship with the child's parents and others

In determining parenting arrangements that are in accordance with the child’s best interests, the Court recognises the importance of the relationships that the child has with their wider family, in particular grandparents and other relatives, under section 60CC(3)(b)(i) and (ii) The importance of such relationships depends largely on the facts of each case. Where the Court regards a particular relationship as being a valuable relationship to the child, the Court will be cautious not to determine an outcome that would terminate the relationship, or undermine its value for the child.

3. Parental abilities and commitment, and ability to provide for the child’s needs

Under section 60CC(3)(c), (ca), (f) and (i), the Court is required to consider both parties’ parental abilities and commitment including:

- Participating in making long term decisions about the child; 

- Spending time with, and communicating with the child;

- Fulfilling obligations to maintain the child;

- Capacity to provide for the needs of the child, including emotional and intellectual needs; and

- The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents.

Read more on the Court's consideration of parental abilities here.

4. Effects of changes in child’s circumstances

Under section 60CC(3)(d) the Court is required to consider, as an additional consideration, the likely effect of any changes in the child’s circumstances, including the likely effect of any separation from parents and other persons.

The Court also considers important factors such as schooling, friends and the child's lifestyle. It is important to note that the Court does not only take into account the negative impact of a change in circumstances, but also, the positive impact  change in circumstances can have on the child.

Read more on the consideration of the changes in a child's circumstances here. 

5. Difficulty and expense of spending time and communicating with a parent

Under section 60CC(3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent, and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis is an additional consideration for the Court in determining what arrangements will be in the child’s best interests. This is an important consideration where one parent lives interstate or overseas, therefore creating difficulty and expense due to the distance.

6. Family violence and family violence orders

Although the protection of children from harm as a result of family violence, abuse or neglect is one of the two primary matters the Court must consider, section 60CC(3)(j) and (k) does not require the Court to find any actual, or risk of, physical or psychological harm to the child in order to conclude that family violence is relevant to the question of the child’s best interests. Therefore it is open to the Court to consider it to be relevant that a person who inflicted family violence has limited parental capacity, and would provide a child with an undesirable model of adult relationships. 

Further, where a family violence order (such as an AVO) applies or has applied, the Court may draw any relevant inferences from the details of the order and circumstances surrounding the making of the order including any evidence admitted in those proceedings, findings, or other relevant material from those proceedings.

7. The child’s characteristics

The Court is required to take into account the child’s characteristics such as the child’s maturity, sex, lifestyle and background including culture and traditions including the traditions of Aboriginal peoples or Torres Strait Islanders under section 60CC(3)(g) and (h) and section 60CC(6). The law emphasises the importance of paying attention to the evidence relating to the particular child or children, because children vary considerably not only in temperament, ability, and understanding but also in cultural background.

If you require assistance with a child custody dispute or obtaining parenting orders, our experts at Prime Lawyers - Family Law Division can help. Contact us to make an appointment with a family lawyer at your nearest Prime Lawyers office.

We have offices in Sydney, Parramatta, Chatswood, Sutherland and Wollongong.

The Best Interests of the Child - The Child's Views

In determining what arrangements are in the child’s best interests, the Court is to take into account "primary considerations" and "additional considerations" under the Family Law Act 1975. One of the additional considerations as set out in section 60CC of the Family Law Act is the child's views.

In the past, the Court was required to not make any Parenting Order that would be contrary to the child’s wishes, where that child was over the age of 14 years, except in special circumstances. Over time the family law changed and the Court is now required to consider any views expressed by the child and any factors, such as the child’s maturity or level of understanding, that the Court thinks are relevant to the weight it should give to the child’s views. 

The word “wishes” was replaced by the word “views” in 2006 to recognise that a child may not necessarily want to express a “wish” about which of his or her parents the child will live with or spend time with. It was intended that the word “views” will also capture a child’s perceptions and feelings, therefore allowing consultation with the child without the child requiring to make a decision or express a wish. It was intended that references to a child’s views will not exclude the child from expressing his or her wishes. 

The new terminology is also consistent with the terminology used in the United Nations Convention on the Rights of the Child. 

The Court is likely to give less weight to the views of a younger child and more weight to the views of an older child. For example, in the case of Allen v Allen (1984) it was held that a seven year old child was not in a position to make a mature, responsible and considered assessment of the relevant factors or of the significance of the decision. However, the views of children, even as young as four to eight years, are not be ignored or disregarded. For example, in the case of In the Marriage of Joannou (1985) the trial Judge’s appeal was successfully appealed for finding that the children’s wishes were not relevant, and were therefore not required to be taken any notice of. Therefore, the Court will have regard to children’s views, but may then consider that in the particular circumstances of a case, they carry little or no weight. This is especially the case where it appears that the child’s views are the result of pressure on the child, or emotional attachment by the child, therefore shedding doubt upon the question of how far they reflect the child’s own views.

It is important to note that the child’s views is only one factor to be taken into account in determining the child’s best interests, and it is common for Courts to make Parenting Orders which are contrary to the views of children. However the Court also considers the likely consequences of making a Parenting Order that is contrary to the child’s views. For example, in the case of In the Marriage of Radford and Alpe (1985) the Judge determined that in that particular case, the children were likely to be so resentful if they were taken away from one of their parents that their relationship with the other parent would be damaged irreparably.

Whether a child's views will be taken into account in a child custody matter is therefore determined on a case by case basis and what may be relevant in one particular matter, may not be relevant in another.

If you require assistance with a child custody dispute or obtaining parenting orders, our experts at Prime Lawyers - Family Law Division can help. Contact us to make an appointment with a family lawyer at your nearest Prime Lawyers office.

We have offices in Sydney, Parramatta, Chatswood, Sutherland and Wollongong.

The Best Interests of the Child - Parental Abilities

When considering what is in the child's best interests, the Court is to take into account parental abilities and commitment and the ability to provide for the child's needs. Under section 60CC(3)(c), (ca), (f) and (i), the Court is required to consider both parties’ parental abilities and commitment including:

- Participating in making long term decisions about the child; spending time with, and communicating with the child;

- Fulfilling obligations to maintain the child;

- Capacity to provide for the needs of the child, including emotional and intellectual needs; and

- The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents.

Prior to 2011, the Court also considered the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent. This enabled the Court to take into account the behaviour of parents who unjustifiably alienated the child from the other parent. This also enabled the Court to appreciate circumstances where a parent was taking proactive steps to enhance the child’s relationship with the other parent.

However, it became clear that as a result of this consideration, parties were sometimes not disclosing concerns of family violence and child abuse for fear of being found to be an “unfriendly parent”. Therefore the removal of this consideration in 2011 was intended to encourage parents to put all relevant information before the Courts and not be concerned about being the “friendly parent”. Despite the removal of this provision, it remains important to distinguish between a parent who is unjustifiably unsupportive of the child’s relationship with the other parent, as opposed to a parent whose behaviour and actions stem from a genuine concern about the safety of the child in the care of the other parent.

Often, parties seek to bring to the Court’s attention evidence about the conduct of the other parent. However, it is important to note that matrimonial “fault” or conduct is relevant in relation to child custody matters only if it has some bearing on the fitness of the person as a parent, and as a consequence, on the best interests of the child. This principle applies not only to issues of fault, such as adultery, cruelty, or whose decision it was to end the relationship, but also other aspects of a parent’s behaviour, such as a poor attitude towards the other parent. “Mud-slinging” in child custody cases is strongly discouraged, and making irrelevant or unfounded allegations can be highly disadvantageous. 

The Court in recent decisions has stressed that it should not rely on preconceived and traditional notions of family units and parental role models, and the Courts acknowledge and respect the diversity of lifestyles and cultural differences and values in each family. However where a particular value or lifestyle or approach to child rearing creates risk for the child, the Court will consider whether it is a relevant issue to consider in determining the question of best interests.

If you require assistance with a child custody matter or in obtaining parenting orders, Prime Lawyers - Family Law Division can help. Contact us to make an appointment with a family lawyer at your nearest Prime Lawyers office.

We have offices in Sydney, Parramatta, Chatswood, Sutherland and Wollongong. 

The Best Interests of the Child - Changes in Child's Circumstances

Under section 60CC(3)(d) of the Family Law Act, the Court is required to consider, as an additional consideration, the likely effect of any changes in the child’s circumstances. This includes the likely effect of any separation from parents and other persons (including any other child or a grandparent or other relative, with whom the child has been living) and the likely effects of change of school, removal of friends, and any other relevant change in lifestyle. 

It also includes the beneficial effects that might arise from a change in the child’s circumstances, for example, where there is a particular problem associated with the school the child is currently attending, or consideration of the beneficial effects of separating from a person who was harming the child. 

Many child support cases refer to the factor of “status quo” – this phrase refers to the general view that if a child’s current parenting arrangements are stable and the child is progressing well, the Court should be cautious about changing the situation unless there are good reasons for considering that doing so will benefit the child. The approach the Courts generally take is that “status quo” may be one of the various matters that may be relevant to a child’s best interests, in addition to the primary considerations of the benefit to the child of having a meaningful relationship with both parents, and the need to protect the child from harm. 

However, the “status quo” is important and the Court’s approach has been that it should give clear reasons if it wishes to disturb a long-standing and satisfactory settlement arrangement. In the case of In the Marriage of Bennett (1990), a case where the young children had lived with their mother for most of their lives and were well-settlement, the Court ordered that the father have custody of the boy and the mother have custody of the girl. The mother successfully appealed, and one of the appeal grounds was that the judge had given insufficient explanation for the disturbance of the status quo.  In contrast, in the matter of Re David (1997), the children were in the care of the mother who had opposed any contact between the children and the father and had made unfounded allegations of sexual abuse by the father. The Court ordered a change in the children’s residence to the father on the basis that this change in status quo was the only way to preserve the children’s contact with the father. 

It is generally assumed that children will benefit from remaining with their siblings, and the Court will usually be cautious and reluctant to separate siblings unless it appears to be in the children’s best interests in all the circumstances. Circumstances in which the Court is most likely to find that siblings should be separated include the following:

- Where the children detest each other;

- Where the children are widely separated in age;

- Where the circumstances of either parent prevent that parent from taking care of all of the children

- Where the children have already been separated and are happy and adjusted in their existing surroundings;

- Where one child, particularly a child of mature years, expresses strong views to be with one parent;

- Where one parent has difficulty controlling or caring for certain children and the other parent would be better able to perform this task.

However, it is important to remember that each case must be considered on its individual circumstances, and there is no legal rule that siblings should never be separated, or separated only in the above circumstances.

The changes in a child's circumstances are only one category of factors that the Court considers when taking into account the "additional considerations" to the "primary considerations" in determining what is in the best interests of the child.

If you require assistance with a child custody matter or in obtaining parenting orders, Prime Lawyers - Family Law Division can help. Contact us to make an appointment with a family lawyer at your nearest Prime Lawyers office.

We have offices in Sydney, Parramatta, Chatswood, Sutherland and Wollongong.

Child Maintenance

A Child Maintenance Order is a type of Parenting Order made under the Family Law Act 1975 that deals with the financial maintenance of a child (s64B(5) of the Family Law Act 1975). An application for Child Maintenance Orders is not only confined to the parents of the child. Section 66F of the Family Law Act 1975 outlines who is able to apply for such Orders. These parties include: 

Parents of the child include biological parents, adoptive parents, parents of children artificially conceived and parents of children born under surrogacy arrangements.

Child Maintenance Orders should not be confused with child support under the Child Support (Assessment) Act 1989. A Court is not to make a Child Maintenance Order if an application could be properly made under the Child Support (Assessment) Act 1989. Under section 66E of the Family Law Act 1975, a Court is not to make a Child Maintenance Order if a child support assessment could properly be made by the Department of Human Services (“the DHS”) (formerly known as the Child Support Agency). As the DHS only started regulating child support in 1989 (and therefore child support assessments under this new regime would not apply to children who were born prior to and whose parents separated before 1 October 1989), the practical effect of section 66E of the Act is that the majority of child maintenance matters, especially where the child is under the age of eighteen (18) years, will be dealt with by the DHS. 

There are strict legal requirements for applying for a Child Maintenance Order under the Australian Family Law jurisdiction. These requirements are different to applying for a child support assessment from the DHS under the Child Support (Assessment) Act 1989. When applying for a Child Maintenance Order, the Court is required to consider the financial support necessary for the maintenance of the child, and determine the financial contributions that should be made by a party towards this financial support (s66H of the Family Law Act 1975). 

In considering the financial support necessary for the maintenance of a child, the Court must take into account the proper needs of the child having regard to the age of the child; the manner in which the child is being, and in which the parents expect the child to be educated or trained; and any special needs of the child. The Court must also take into account the income, earning capacity, property and financial resources of the child (s66J of the Family Law Act 1975).

In determining the contribution that should be made by each party, the Court must take into account the income, earning capacity, property and financial resources of each party, the commitments of each party that are necessary to enable the parties to support themselves or any other child or another person that the person has a duty to maintain, and the direct and indirect costs incurred (s66K of the Family Law Act 1975). 

Child Maintenance Orders cease to exist when the child turns 18 years (s66T of the Family Law Act 1975), dies (s66U of the Family Law Act 1975), or is adopted, marries, or enters into a de facto relationship (s66V of the Family Law Act 1975); however, a Court can make a Child Maintenance Order in limited circumstances for children over the age of 18 years. 

Child Maintenance Orders can apply to children over the age of 18 years, provided that the Court is satisfied that it is necessary to enable the child to complete his/her education or because of a mental or physical disability of the child and provided that the Order is expressed to continue in force after the child turns 18 years (s66L of the Family Law Act 1975). The Court can make a Child Maintenance Order that is to take effect when or after the child turns 18. In these circumstances the Order will only stop being in force if there is a change of circumstances; that is, if the child dies, ceases that education, or ceases to have that disability (s66VA of the Family Law Act 1975), or is adopted, marries or enters into a de facto relationship (s66V of the Family Law Act 1975).

Child Support Assessment and Agreements

All parents are required legally to provide financial support for their children until each child turns 18 years of age. This principle applies if the parents were married, or living in a NSW de facto relationship, or even if they never lived together.

The amount of child support NSW law requires each parent to pay depends on how much time the child is in that parent’s care, and the financial circumstances of each parent.

Except in rare cases, child support is not decided by the Family Law Courts. Usually it is an administrative matter, determined by the Commonwealth Government, through the Department of Human Services. 

Child Support Assessment

The simplest way to work out your child support amount is to ask the Department of Human Services to make an assessment. The department is linked to the Australian Tax Office and has access to income tax records and other financial information held by the Commonwealth Government.

These assessments are based on a complex formula that takes into account the taxable income of each parent, the parents’ living expenses, the costs of the child, the costs of any other children that the parents are supporting and the amount of time the child spends with each parent. Assessments are updated regularly as circumstances change, for example, when a parent’s income from employment increases or decreases.

Sometimes a child may be cared for by someone who is not their parent, such as a grandparent or other relative. In those circumstances, the carer may still be able to claim child support. 

Child Support Agreements

Many parents who do not live together are able to work out an agreement about how they will support their children financially.

If the parties are able to reach agreement then a family law solicitor can prepare a binding Child Support Agreement for registration with the department, taking the place of an assessment. Usually the amount in a Child Support Agreement will be no less than the amount stated in the standard assessment, to ensure that children are no worse off and so that the parents’ tax benefits are not affected. Limited Agreements can be a good idea because they are reviewed by the department every three years to ensure that they are fair.

Even if communication is difficult, it may be possible to negotiate a practical solution with the other party with the assistance of a family lawyer. The agreed amount of child support can simply be paid from one parent to the other, or the parties can ask the department to collect the child support from the paying parent and then pay it to the eligible carer.

Our lawyers can help you to navigate the often difficult area of child support and in doing so, help you to gain a level of financial security for yourself and the children.

If you require advice in relation to a child support agreement, our experts at Prime Lawyers - Family Law Division can help. Contact us to make an appointment with a family lawyer at your nearest Prime Lawyers office.

Application for Child Support by Non-Parent Carer

However, despite this starting point, where:

(a)  a person cares for a child; 

(b)  the person is neither a parent nor a legal guardian of the child; and

The law holds that it is unreasonable for a parent or legal guardian to care for a child if:

(a) either there are special circumstances in the case which compel the applicant to apply for child support for either or both parents, or if a parent is overseas or has died and the applicant applies for child support for the other parent; and

(b) the applicant is not living with any of the parents and is not a partner of either parent; and

(c) the applicant complies with s26 and s26A of the Child Support (Assessment) Act 1989; and

(d) the required steps are taken if the parent is living overseas.

Pre-action Requirements - Mediation

Before an application is made for a Parenting Order under Part VII of the Family Law Act 1975, section 60I of the Act requires that the person applying must make a genuine effort to resolve the parenting dispute by family dispute resolution.

Exceptions to Mediation Requirement

The Family Law Act 1975 requires that before a party makes an application to the Court for Parenting Orders, genuine attempts at resolving the parenting dispute through mediation must be made. However, it also acknowledges that it may not always be possible or necessary for a party seeking to apply for Parenting Orders to first attempt family dispute resolution. 

Section 60I(9) of the Act sets out the following six (6) exceptions to the requirement, whereby in such circumstances the applicant does not need a certificate:

The exceptions, in brief, are where the applicant is seeking Consent Orders, or is responding to another party’s application; where there are reasonable grounds to believe that there has been child abuse or family violence; where the matter involves contravention proceedings; where it is urgent; and where at least one of the parties “is unable to participate effectively in family dispute resolution”; or “other circumstances specified in the regulations are satisfied”.

In relation to applications for Consent Orders, the rationale for this exception is presumably that it is unreasonable to require a dispute resolution process. In relation to cases where the application is in response to the other party’s application for Parenting Orders, the rationale is presumably that the requirements of section 60I would have applied to the other party’s application, and there is no point in imposing the same requirement when a party files a response.

The exception for applications involving contraventions or made in urgent circumstances applies to circumstances where a party is required to put on an urgent application where the applicant fears that the other party is about to remove the child from Australia. 

The exception where one or more of the parties “is unable to participate effectively in family dispute resolution” applies to situations whereby a party cannot participate because of an incapacity of some kind, physical remoteness from dispute resolution services, or for some other reason.

The rationale for the exception of the dispute resolution requirement in circumstances where there are reasonable grounds to believe that there has been child abuse or family violence by a party, or a risk of either of these, is that it would be unreasonable to require the applicant to engage in a dispute resolution process before filing an application. There is a further requirement in these circumstances, under section 60J of the Family Law Act 1975 that the Court cannot hear the application unless the applicant has indicated in writing that the applicant has received information from a family counsellor or family dispute resolution practitioner about the services and options (including alternatives to court action) available in circumstances of abuse or violence. However, there is again an exception to this further requirement if the Court is satisfied that there are reasonable grounds to believe that:

• There would be a risk of abuse of the child if there were to be a delay in applying for the order; or
• There is a risk of family violence by one of the parties to the proceedings.

It must be remembered that the exceptions to the requirement for attempting family dispute resolution are limited. Further, what might appear to be a set of circumstances that falls within one of the exceptions to some people may not be consider such by the Court.

If you require assistance with a custody dispute or obtaining parenting orders, our experts at Prime Lawyers - Family Law Division can help. Contact us to make an appointment with a family lawyer at your nearest Prime Lawyers office.