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:

– 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.

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:

– A child has been taken by one parent and the other parent does not know the whereabouts of the child;

– A child is at risk of being taken out of the country without the permission of both parents;

– The child is in the care of one parent and the other parent believes the child is at risk of serious harm;

– One parent plans on relocating with the child to a location that is a significant distance away from the other parent;

– One parent has suddenly stopped the other parent from spending any time with the child.

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.

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