Approaching separation and children custody can get particularly tricky. First and foremost, we must understand that there is no legislation dictating who should have custody in separation and children custody matters.
As a result, it is up to both biological parents to decide on child custody agreements after they separate. The Family Law Act was deliberately written to eliminate any gender bias when assessing separation and children custody issues.
Separation And Children Custody: The Child’s Best Interests
The Family Law Act of 1975 governs separation and children custody issues in Australia. When making choices concerning children during a separation, it’s important to remember that the court prioritises the child’s best interests. The legislation examines the following factors, according to section 60CC of the Act:
- The benefits of the child of having a meaningful relationship with both parents; and
- The importance of preventing physical or psychological harm to the child as a result of abuse, neglect, or family violence.
The court will always put the safety of the child or children first. This is the case even if it means sacrificing the chance for a meaningful relationship with the parents. Other criteria that courts examine while assessing what is best for the child include:
- What the child (or children) desires;
- The child’s or children’s relationship with their parents or grandparents;
- How actively each parent has previously participated in their parental role;
- Whether the parent has met his or her financial or other obligations to the child or children;
- Each parent’s perspective;
- The child/and children’s parents’ maturity, sex, lifestyle, background, culture, and customs; and
- If there is a history of domestic abuse and/or a domestic violence
The courts assume that it is in the child’s best interests for both parents to bear responsibilities equally. Section 61DA of the Act presumes this. This presumption of shared parental responsibility does not apply in situations of suspected domestic violence or child abuse.
In a circumstance when both parents agree on equal parenting, they must make an effort to reach a mutual agreement on long-term decisions. There is no need for consultation while making daily decisions.
Parenting Plans
There are parents who just have an agreement and are capable of figuring out separation and children custody arrangements easily. There are other parents who merely put things down between themselves so that they can stay organised, but who are pleased to follow the agreement otherwise.
If ex-spouses are unable to come to an agreement, they may petition for a variety of parenting orders. On the other hand, parenting plans are a written, signed agreement between both parents. This agreement spells out who has custody and who gets access to the children.
It can be as broad or as narrow as needed. Ex-spouses who can’t agree on separation and children custody arrangements can use custody orders. Parenting plans can address one or more of the following issues:
- Who will raise the child/children;
- How much time the child or children will spend with each parent and other individuals (for example, grandparents);
- Parental duty distribution;
- How the child/children will communicate with a parent with whom they do not reside or with other individuals, and
- Any part of the child/care, children’s welfare, or growth
Court Orders
A series of orders are made by a court regarding a child’s parental arrangements. Court orders are written orders that the court seals. Both parents with mutual consent can obtain approved court orders. Parents can also obtain these through court proceedings where a judge decides who should have child custody.
If you want to get a consent order, you’ll need to write up the orders you want the court to issue. You will also need to complete the following papers in addition to the written orders:
- Application for Consent Orders
- Annexure to Consent Orders
All paperwork requires both parents’ signatures. You must first pay the filing fee before filing the paperwork in Family Court. When the court gets the documents, a registrar or judge will review them. If satisfied they will seal the orders and mail them to you.
Separation And Children Custody: Keeping A Child From The Other Parent
A parent might potentially refuse child access to the other parent while there are no orders in place. This may be the proper course of action in situations when there has been severe violence or drug usage. However, It is not encouraged if a parent is withholding access because they are unhappy with the other parent.
What matters more than how parents appear in court is the harm done to children who don’t have frequent contact with both parents. Remember that while separation and children custody is difficult for parents, it is far more difficult for children.
Can My Child Be Relocated Overseas?
If the child/children are required to spend time with both parents, they cannot be moved or even go internationally without their consent. If an agreement cannot be reached, a court application for orders enabling the trip must be filed.
The court will evaluate any factors that are relevant to the child’s or children’s best interests. It’s possible that your child or children are being transferred or sent overseas without your permission. To prevent this you should get legal advice as soon as possible and file an order.
If you remove the children from Australia after learning that Family Court proceedings have been started, you will be in contempt of court. This action carries a penalty ranging from a fine to jail.
Importance Of Seeking Legal Advice
Separation and children custody matters vary from state to state. Facing cases like this head-on can be difficult. To reiterate, all actions should reflect the child’s best interests. At JB Solicitors, our family lawyers have experience in dealing with separation and children custody.
With our legal aid, we can assist disputed parents in considering mediation instead of costly court procedures. Our mediation services will help disputed parents in arranging fair parenting plans and approach these matters in a peaceful manner.
Contact our family-friendly team today
