If parents cannot reach an agreement on where their children should be living, this decision will have to be made by the court. To do this, the court will look at the relevant factors in the Family Law Act 1975, and take both the past circumstances and the future prospects into account. All child custody decisions are always made while ensuring that they are in accordance with the best interest of the child.

Best Interests of the Child

It is usually considered the best interest of a child that it has quality and loving relationship with both of their parents. However, sometimes arranging a solution with such relationships in mind can prove challenging for the court, as well as for one or both parties.

To make the decision on where the children should live, the court will take into account

  1. The benefit to the child of having a meaningful and loving relationship with both of their parents, and
  2. The need to protect the child from physical or psychological harm, neglect, abuse or family violence.

The second point – the need to protect the child – carries greater weight than the child’s benefit of having both involved parents. However, when making the decision on the physical custody of the child, the court may look at other relevant things.

If the child is mature enough, they may be asked where they would like to live. Furthermore, the court may look into the already established relationships of the child with each of the parents, as well as extended family members (grandparents, aunts, uncles). This can lead to the child being put in the care of people they are comfortable with. If you have any concerns about this, do not hesitate to contact Withstand Lawyers. Our team of specialists with different expertise includes experienced child custody lawyers who will work with you to ensure that you get the best outcome possible in terms of maintaining quality relationship with your child.

The court may look at the history of the parents and make a decision on the basis of their previous will to take opportunities to spend time and communicate with their child. Due to this practice, our child custody lawyers often advise our clients to take notes of what they and their ex-partners had been doing prior to child custody matters going to the court.

The future of the child is also of an utmost importance when dealing with child custody matters. The court will make an assessment about the parents’ ability to provide for the upcoming needs of the child, not just financially, but emotionally and intellectually.

Parenting Plans and Court Orders

Not always will the parents be required to settle their custody matters on the court. If they can reach the agreement on where their children will live, together with the draft of the visitation schedule of the other parent, they should enter into a parenting plan or consent orders.

Parenting plans are written agreements that set out the arrangements for the children. A typical parenting plan includes details about the child’s whereabouts, the days the child will spend with the other parents, the tentative plan on how school holidays should be spent, along with any special events such as Christmas and birthdays. Any other matter relevant to the co-parenting of the child can and should also be added to a parenting plan.

A parenting plan is not a legally enforceable document.

If you want to draft a proper and appropriate parenting plan, you can refer to section 63C of the Family Law Act 1975. To spare you from any legal ambiguities, ask your child custody lawyer for help, as they have had a lot of experience with these.

If you complete an application for consent orders and attach a copy of the parenting plan, you could have the parenting plan approved by the court as a Consent Order.

A Consent Order, unlike a parenting plan, is a legally enforceable agreement and holds the same weight as a Parenting Order that the Court has made after the hearing.

It is often the case that a parenting plan is entered info after negotiations between legal representatives, or after a successful mediation. As experienced child custody lawyers, however, we at Withstand Lawyers advise our clients for this agreement to be submitted to the courts for the purposes of making it an enforceable agreement.

Changing Parenting Plans and Court Orders

If one of the parents is unhappy with a particular aspect of their child custody arrangement, the first thing they should do is seek legal advice. Withstand Lawyers offer free consultation on any legal matter, so if you have never been represented by us, call us or send us an email to book a free appointment where you will tell us the specifics of your case.

Be aware that the general rule is that if a decision has been made in the court, it will not be changed. But this can vary in relation to significant changes of circumstances. If there indeed has been a material or significant change of circumstances, it can result in a court hearing. Be careful not to waste your chance away. The court does not want to listen to the same issues about the same children time after time. This is precisely why it is crucial that the circumstances have changed – and the court understands that this is possible.

Our general advice for our clients is to attend mediation when trying to resolve a dispute. If the other party is not cooperating or is resentful, it can leave you with no other option than to make an application to change the existing parenting order.

Visitation Rights

Following the relationship breakdown, former partners can experience difficulties in communication. It is not uncommon to see the children being used as tools to manipulate the other party. For example, you may be denied visitation or access to your children by your ex-partner. Should this happen, there are different options to explore. As one of the best firms in Australia for child custody lawyers, we work with our clients to ensure they will choose the best option depending on their situation, and understand the repercussions of each option available.

If you have Court Orders in place, your best bet is to attend a dispute resolution centre to have a mediator try and resolve the issue. Should this fail, you will be able to get a certificate from the mediator stating that a genuine attempt to resolve the matter was made by you, but no solution could be reached.

In this event, you need to file the certificate with a Contravention Application, which states that the other parent has breached the original Court Orders. The court will then look at the breach, and it may happen that they enforce the Orders and punish the other parent for breaking them.

If you have a parenting plan that outlines each parent’s commitment to the children, first determine whether any commitment has been breached. If this is the case, you should consider starting an Initiating Application in the Federal Circuit Court.

Withstand Lawyers, as experienced child custody lawyers, recommend that upon separation you immediately come to an agreement on how the child or children will be spending their time with each parent. This is likely to help you in the future, even if there are no disputes to follow. Drafting a parenting plan is simply in line with best family law practice, and can spare you from a lot of headache down the road. Not making any agreement will definitely lead to arguments and problems, as there will be miscommunication and confusion between the parents.

Book an Appointment with Withstand Lawyers

At Withstand Lawyers, we are aware that child custody can be one of the most difficult and stressful issues a person may ever face. We have had the opportunity to handle a number of cases involving child custody, and successfully help our clients achieve the best possible outcome. If you choose us to represent you, you will work with one of the best child custody lawyers on your case and be able to get the best parenting agreement for you and your children.

Call Withstand Lawyers today at 1800 644 541, email us at info@withstandlawyers.com.au or send an online inquiry so we can assess your situation better. Also bear in mind that we are happy to discuss the fees upfront so you know what the costs are.

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