Disputes about who a child should live with, and how much time they spend with each parent are extremely common following separation.
Children have the right to have a meaningful relationship with each of their parents in the absence of very good reasons to the contrary, and all children’s issues are determined on the basis that the child’s best interests are the paramount consideration. We provide our clients with child-focused and effective advice in relation to issues concerning child custody and parental responsibility.
The Rights of Your Child
Children have the right to know and be cared for by both parents irrespective of whether their parents are married, de facto, separated or were never in a relationship. Children also have a right to spend time on a regular basis with both of their parents, to have a meaningful relationship with both of their parents, and to know other people significant to their care – such as grandparents and other relatives.
In the absence of compelling reasons to the contrary each parent of a child has responsibility for them.
The law makes a presumption that the child’s best interests are promoted by each parent exercising their responsibilities and being equally involved with the life of the child. It is also essential that children receive adequate and proper parenting to help them achieve their full potential. Considerations which may displace this presumption include the need to protect the child from harm, or of being exposed to abuse, neglect or family violence.
In the absence of such factors, a Court will ordinarily be prepared to make Orders which provide for parties to exercise equal parental responsibility for a child. In such circumstances, the Court is then bound to consider whether a parent spending equal time with a child is in the child’s best interests, or is reasonably practicable.
If equal time is not found to be in the child’s best interests or reasonably practicable, the Court must then consider whether it is in the child’s best interests to spend substantial and significant time with the other parent – eg. 4-6 nights per fortnight.
The Court considers a large range of factors when determining what is in a child’s best interests, and undertaking an analysis of these factors can be a complicated process. TJ Mulvany & CO can help you through all stages of the process.
Am I Guaranteed Equal Time?
Amendments to the Family Law Act over recent years have created some confusion as to whether separated parents have the automatic right to equal time with their children. As indicated above, whilst there is a presumption that each parent should exercise parental responsibility, this does not necessarily equate to a presumption that each parent ought to have equal time with the child.
We assist clients in coming to arrangements with the other parent of your child or children so as to enable you to make decisions on major long term issues such as education, religion and health whilst ensuring that appropriate arrangements are in place to ensure the child can have a meaningful relationship with each parent.
Regrettably, there are occasions when a child’s best interests may not be fostered by regular time with both parents on an interim basis. T.J. Mulvany specialise in complex children’s cases, and take very seriously our role in providing objective and child-focused advice to parents in high conflict separations, or in circumstances involving family violence or risk to children.
We adopt a partisan approach to all family law matters and have regularly acted for both mothers and fathers of children in difficult parenting cases.
How do I Obtain Parenting Orders or a Parenting Plan
Resolving parenting issues can be a challenging task which must take into account the family dynamics of each individual case.
In the event that you and your former partner are able to agree about arrangements with your children, then a Parenting Plan or Parenting Orders can be obtained by consent which formalise the exercise of parental responsibility, who the child will live with (previously known as child custody) and who the child will spend time and communicate with (previously known as access or contact).
We can assist you in streamlining the process of obtaining Parenting Orders by consent.
What If We Can’t Agree On Parenting Arrangements?
In the event that you and the other parent of the child are unable to agree about the arrangements for parental responsibility and the care of the child, we will assist you by making an appropriate application to the Court.
Customarily both parties are required to attend family counselling in an attempt to resolve the issues concerning the care of your child before an application can be lodged with the Court. We strongly advocate alternative dispute resolution to our clients as a means to minimise conflict and to come to an early resolution of children’s issues.
Before an application can be lodged with the Court, it is necessary to obtain a certificate confirming that you have attempted or attended family counselling. An exemption from this requirement may be obtained in circumstances involving child abuse, family violence, or urgency.
We can assist you through this process, and ensure that if such dispute resolution is not successful that you are able to obtain appropriate Orders from the Court which reflect your child’s best interests.