Child Custody Lawyer Melbourne

Child Custody and Parenting Arrangements

Parenting is challenging in the best of circumstances but can be more so following a separation. It is important to remember that, even after separation, in most cases, both parents will continue to play an important part in their child’s life.

It is usually best for children for their parents to try and reach agreements about their care arrangements and other parenting matters. If parents cannot agree, they can participate in Family Dispute Resolution (eg. Mediation), or as a last resort, apply to the Federal Circuit and Family Court of Australia (‘the Court’) for assistance.

Negotiating and formalising parenting arrangements involves matters such as:

Parental responsibility for major decision-making concerning the children (eg. education, health, religion/cultural traditions, and change of surname);
With whom the children will live, and/or how much time the children will live/the time children will spend with each parent;
How the children will communicate with each parent; and
The sharing of important information between parents about their children.

Our child custody lawyers in Melbourne will help you navigate this process and reach agreements which are in the best interests of your children.

What does the Family Law Act say about Parenting Arrangements?

All parenting arrangements must be focussed on the best interests of the child. In making parenting Orders (whether by agreement or by decision of the Court), the Court has regard to a range of matters including:

The importance of a child having an ongoing and meaningful relationship with both parents;
Any family violence or safety concerns affecting the child’s care;
The relationship between each parent and the child;
The extent to which each parent has sought to make decisions about, spend time with or communicate with the child;
The financial support provided by each parent; and
Any views expressed by the child.

From a legal perspective, it is presumed that both parents will have equal shared parental responsibility, unless it is not in the child’s best interests. This means that both parents should consult with each other and try to reach agreements about major decisions affecting their child. However, this does not mean that parents have equal parenting rights or that children should live with their parents on an equal or shared time arrangement. Under the Act, parents have responsibilities, not rights.

Parents know what is best for their children. Care arrangements can take many forms. It might mean longer blocks of time for children with each parent. Alternatively, it may mean shorter blocks of time with each parent and more frequent changeovers.

If your children are school-aged, it is common for children to spend time with both parents during school terms and school holidays, as well as on important occasions, such as Christmas Day, birthdays and Mother’s/Father’s Day.

Melbourne Child Custody and Support Lawyers

Negotiating and formalising parenting arrangements involves matters such as:

Parental responsibility for major decision-making concerning the children (eg. education, health, religion/cultural traditions, and change of surname);
With whom the children will live/the time children will spend with each parent;
How children will communicate with each parent; and
The sharing of important information between parents about their children.

Our child custody lawyers in Melbourne will help you navigate this process and reach agreements which are in the best interests of your children.

Agreements: Parenting Plans and Court Orders by consent

A positive relationship between parents following separation will have a positive impact on children.

A Parenting Plan is a signed and dated written agreement between parents (or other significant people in a child’s life) setting out a range of matters which may include parental responsibility, living arrangements for the children, communication between children and their parents, and financial support for the children. A Parenting Plan may be as general or as detailed as the circumstances require. It can provide a level of flexibility to accommodate the changing needs of children and parents.

Sometimes, parents may need their agreements about parenting arrangements to be formalised, and to be binding on both parents and enforceable by the Court. Parenting Orders can be made by the Court by agreement (consent) between the parents (Consent Orders). This involves making a joint Application to the Court, to ask the Court to assess the agreement and make Orders. In assessing the Orders sought, the Court will consider the best interests of the child. No Court appearance is needed when an Application is made to the Court by consent.

No agreement: FDR and Court

If parents cannot agree on parenting arrangements after separation between themselves, they may need the assistance of a third party.

This can be a family lawyer, who will negotiate on your behalf. You may wish to participate in Family Dispute Resolution (‘FDR’) (e.g. mediation). Your lawyer or FDR practitioner will assist you in finding a pathway forward.

If parents cannot agree after having attempted FDR or in circumstances of urgency (e.g. withholding a child and/or abduction), a parent may need to make an application to the Court for urgent parenting Orders. Notwithstanding, the law states that issuing Court proceedings must be a last resort.

In most circumstances, a certificate from a FDR practitioner is required by the Court, before issuing proceedings (i.e. a section 60I FDR certificate).

Parenting proceedings may involve complex emotional and legal issues. Your lawyer will help you navigate this process.

As part of parenting proceedings, an expert report called a Family Report is often prepared to help parents and the Court decide what is in a child’s best interests moving forward. In certain circumstances, the Court may appoint an Independent Children’s Lawyer to act in the child’s best interests.

The Court may also order that the parents participate in a Family Dispute Resolution conference. This typically differs from an out-of-Court FDR process in that parents are assisted by a Judicial officer and sometimes, a Court-appointed child psychologist (Court Child Expert), to resolve their dispute

If the matter proceeds to a Final Hearing and no agreements are reached, the Court will make Final Parenting Orders. Parents should assume that Final Parenting Orders are binding and enforceable. They can only be overturned in extremely limited circumstances.

It is important to know that a Parenting Plan or Consent Orders can be entered into at any point in a FDR process or Court proceedings.

Our Melbourne child custody lawyers will de-mystify the Court process for you. Call us to discuss your unique situation so we can help you with advice, strategy and support at this time.

How may Family Violence affect my parenting matter?

As part of your parenting responsibilities, parents must protect your children from harm, whilst balancing these concerns with the importance of children continuing to have a meaningful relationship with both parents (to the extent that it is in their best interests).

With the welfare of children being paramount, circumstances of family violence are given close attention and impact a Court’s decision when making a parenting Orders.

The existence of family violence may excuse a party from attending Family Dispute Resolution which would usually be compulsory before commencing Court proceedings for parenting disputes.

What if I am worried about my children spending time with my former partner?

If you are concerned that your child has been or may be exposed to abuse or violence while in the care of the other parent, it may not be in their best interests to spend time with them. It may be appropriate for the children’s time with the other parent to be supervised to ensure that any safety concerns you have are addressed.

Safety concerns may include:

Family violence towards or in front of children (eg. physical or verbal abuse, threats and intimidation, harassment, manipulation, parental alienation, coercion, and child grooming);
Problematic behaviours impacting parental capacity (eg. anger issues, mental health issues, and addictions);
Child neglect; and
The likelihood of child abduction/relocation.

If you have serious concerns about your children’s immediate safety in the care of your former partner, you should report your concerns to the police and to Child Protection (Department of Families, Fairness and Housing – Victoria). Please contact us for advice about the best path forward if you are unsure. A report to Child Protection may lead to Children’s Court proceedings. We can assist and represent you in such proceedings, if necessary.

What if my former partner is saying that the children cannot spend time with me because I am unsafe?

Your former partner may unreasonably be insisting on supervised time arrangements or withholding the children from you without detailing safety concerns or providing evidence in support of such concerns. Your former partner may also be alienating the children from you.

In these circumstances, you may need to issue Court proceedings to ask for parenting Orders in the best interests of your children. Please contact us for advice regarding your unique situation.

Child Support Lawyers in Melbourne

Following separation, parents continue to be financially responsible for their children regardless of the level of involvement they have in their child’s life. Child support can be periodic (a regular amount of money going from one household to the other) or non-periodic (e.g. payment of educational expenses, health insurance, medical/dental and other gap payments, and extra-curricular activity expenses). The Child Support (Assessment) Act 1989 is the relevant legislation that deals with child support in Australia.

Parents can reach agreements about the ongoing financial support of their children. These arrangements can be negotiated between parents directly, or with the assistance of lawyers or a FDR practitioner.

Periodic payments of child support can be administratively assessed by Services Australia (Child Support Agency), or simply as agreed between parents. Assessed payments are calculated by Services Australia using a formula that takes into consideration factors including both parents’ incomes and the living arrangements of the children. In making a private agreement and instead of seeking an administrative assessment, parents may use the online ‘Child Support Estimator’ on the Services Australia website as a guide.

Our child support lawyers will help you apply for child support, request an assessment to be reviewed, or provide guidance on how to enforce the payment of a child support assessment. It may be appropriate for either parent to apply for a review from Child Support (Services Australia) in certain circumstances (eg. a parent paying private school fees for a child, or payments in support of a disabled child).

Child Support Agreements

If parents want to formalise their child support agreements, they can either enter into a Limited or a Binding Child Support Agreement. Child support agreements may often include matters such as agreed periodic payments, payment of educational expenses (e.g. fees, uniforms, camps, excursion and laptop hire), gap medical/dental expenses, and a range of other non-periodic expenses.

A Limited Child Support Agreement can be entered into if parents have sought an administrative assessment. It expires 3 years after the date of the agreement.

A Binding Child Support Agreement (BCSA) can only be entered into if both parents have lawyers. Amongst other matters, for the BCSA to be legally binding and enforceable, both solicitors need to sign certificates certifying that they have provided each parent with independent legal advice about the advantages and disadvantages of the agreement. BCSAs can only be set aside in exceptional circumstances. You should seek legal advice about this.

Child Support Departure Orders

If required and in limited, rare circumstances where parties do not agree about child support arrangements, an application to the Court may be made for a ‘departure order’. An application for a ‘departure order’ is a request for an administrative child support assessment to be set aside, and for the Court to make Orders for child support in lieu. A number of factors are considered by the Court including each parent’s financial circumstances, the child’s needs, any prior agreements between the parents or ‘status quo’ arrangements, and any hardship caused to the child or either parent if a departure order is made or refused.

If you need a child custody lawyer or a child support lawyer in Melbourne or the surrounding areas, contact us for expert legal advice.

Parenting Coordination

We offer Parenting Coordination as a unique Alternative Dispute Resolution method for parents who are struggling to implement Court Orders in everyday life. Parenting Coordinators are usually appointed by a Court, but can also be jointly appointed by agreement between separated parents. The goal of Parenting Coordination is to assist parents to consider the best interests of a child when implementing Court Orders, whilst building a co-parenting or parallel parenting relationship where possible.

Our lawyers in Melbourne and Balwyn can help you navigate the difficulties you may face with parenting and child support matters after separation. If you need assistance, contact melbourne@maeveobrien.com.au or call 03 9857 0099.