Child Custody & Parenting Plan

Applications for orders affecting children, including who children live with (i.e. child custody), spend time with and communicate with, are called “parenting orders”. If you believe you need to obtain, change or remove an order, you may benefit from speaking to one of the child custody lawyers at our Brisbane firm.

In detail…

Applications for parenting orders are quite different to other applications in the State and Federal Courts in that the parties to the application are often not seeking to assert their own rights, but rather seeking orders with respect to the rights of the subject child or children. Your child custody solicitor will be able to explain your rights and responsibilities in plain English.

The Family Law Act 1975 (“the Act”) contains in Part VII the law with respect to parenting matters, including setting out in the “objects and principles” what are the rights children enjoy as well as the responsibilities parents have.

The court has a broad discretion to make a parenting order subject to making the “best interests of the child or children” the paramount consideration in making an order.

The Act sets down the best interest factors in section 60CC. The factors are separated into “primary” and “additional” factors; and the weight the court affords to any particular factor will depend upon the circumstances of your case.

Children’s matters can be very emotional and it is important that you retain a child support lawyer in Brisbane who can provide expert child custody advice. Hooper Family Lawyers are Brisbane family lawyers who can assist you in understanding the family law system as it relates to child custody/parenting, formulating a parenting regime that will be best for your children and your family or fighting for the rights of your child in court if necessary.

Child Support Payments

Child support issues are for the most part dealt with by the Department of Human Services and not by Court action. The Department of Human Services administers the Child Support Scheme. Information regarding your potential child support entitlement or liability can be located at the Department of Human Services website (in the Links section of this website).

Even though child support is more of a government rather than Court process, we can provide advice/services in child support matters such as:

Advice concerning your rights and obligations;
Drafting Limited and Binding Child Support Agreements;
Advice concerning applications for Change of Assessment/Departures;
Appeals to the SSAT;
Child maintenance pursuant to the Family Law Act 1975 concerning adult children or step children.

Consent Orders

Property, parenting and spousal maintenance issues can be resolved on a final basis by the parties forming an agreement, and then having this agreement recorded in a consent order.

A consent order can be made at any time during the conduct of a proceeding before a court, or prior to proceedings being commenced.

Once a consent order is made the parties are bound by the terms of the order.

The advantage of a consent order is it gives the agreement the force of being an order of the court while still allowing the parties to craft the outcome best for them.

One of the most inexpensive methods or resolving a family law dispute is for each of the parties to obtain independent family law advice, reach an agreement and then have their family law solicitors prepare the consent order.

Hooper Family Lawyers can provide you with an estimate of costs to draft your consent order application, or discuss with you fixed fee arrangements in appropriate circumstances.

Family Dispute Resolution and Mediation

In any civilised society there are only two methods by which disputes between parties can be resolved. That is by agreements between the parties or decisions from judges.

Family Dispute Resolution or FDR includes mediation which is a process by which a trained mediator facilitates an agreement being reached by the parties themselves. Generally it is also helpful and efficient for each party to have the assistance of legal representatives.

Mediation can involve discussions in a round table format or by “shuttle” where the parties and advisors are in separate rooms and they communicate via the mediator.

With some very narrow exceptions related to criminal offences, mediation is “without prejudice” which means concessions made at mediation cannot later be raised in evidence if the mediation is unsuccessful.

Mediation in property matters is often successful when both parties are well represented and well prepared; saving large sums of money that may otherwise be spent on proceeding to trial. In the event that proceedings are commenced, it would be unusual for the matter to be listed for trial unless mediation has occurred.

In parenting matters, the necessity to attend FDR is encapsulated with section 60I Family Law Act 1975. This section provides that as a general rule, unless a certificate is obtained from a mediator who is an accredited dispute resolution practitioner, a party cannot file a proceeding in court.

Child Abduction Law

This is an area where prevention is better than cure. If you suspect that someone (usually the other parent) intends to remove children from Australia without your consent you should obtain legal advice immediately. These are several methods by which urgent action can be taken. These are:

To obtain an Injunction to restrain a person from removing children;
Cause passports to be surrendered; or
Place the names of the children upon the Australian Airport Watch List with the Federal Police.

If children are removed from Australia it can be difficult, but not impossible to recover them. Some countries have signed and ratified international Conventions allowing Applications to be made to the “Central Authorities” in the particular country. Time is important however, and the longer a child is in a foreign country and settled, the more difficult the recovery can be. In these circumstances you should obtain legal advice urgently.

Child Location and Recovery Order

If you don’t know where your child or a parent is living, a “location order” or “Commonwealth Information Order” authorises a government department such as Centrelink or the ATO to provide the court registrar with information to identify where the parent of a child is living.

This information is then used to affect service of court documents.

A “recovery order” is an order directing the Federal Police to recover a child back into the care of a primary carer, prohibit the removal of the child from the care of a person and/or authorise the arrest of the person who took the child.

You can apply for a recovery order if there is a parenting order in your favour or if you are the person who the child usually lives with or spends time with depending on the circumstances of the child being removed.

In situations where children have been abruptly removed from their regular circumstances it is important to avoid delay and contact a family lawyer Brisbane such as Peter Hooper, as soon as possible.

Child & Parental Relocation Rights

One of the most emotionally difficult circumstances in family law arises when one parent wishes to relocate a child’s residence to another city or town.

A move away that would make it significantly more difficult for the child to spend time with the other parent is a major long term issue, and equal shared parental responsibility requires parents should make a “genuine attempt” to come to a “joint decision” on this issue.

However if an agreement cannot be reached a decision of the court will be necessary.

Although the courts have said relocation matters do not form any special category of cases, and that the best interests of the child remains the paramount consideration in determining what order will be made, there are a number of other considerations that have been expressed by the case law such as:

Recognition that a relocation case represents a tension between a parent’s constitutionally protected freedom to live where they choose; and the rights of children to enjoy a meaningful involvement of the other parent in their lives;
Recognition that best interests is the “paramount” and not “sole” consideration;
The court is not bound by the proposals of the parties and may consider other proposals;
The relocating parent is not required to establish compelling reasons for the relocation.

Important evidence in relocation cases will depend on the facts of each case and evidence such as the prospects for the relocating parent financially, geographically or emotionally, the nature of the child’s relationship with the non relocating parent, existence of any family violence and any other relevant matters need to be examined.

Timing can also be important. If a parent unilaterally decides to relocate a child, obtaining legal advice as swiftly as possible is recommended.

While the court does not have power to order a parent to live in a particular location, the court can make orders as to where the child will live. Thus it is important to also consider what the options might be if the court orders the child to remain in a particular location but the residential parent decides to move anyway.

In the event that a parent decides to relocate a child without consultation, we recommend you contact Hooper Family Lawyers Brisbane without delay.

Grandparents’ Rights

Grandparents are people who are able to apply to the court for a parenting order with respect to their grandchildren.

The objects and principles the Family Law Act 1975 provides that children have a right to spend time with and communicate with people such as grandparents on a regular basis.

The best interest factors also refer to children’s relationship with grandparents as being a matter to be examined in determining best interests in relevant cases.

Parenting orders in relation to grandparents can range from orders for communication or time right through to orders that the child lives with the grandparent, and will depend on the facts of each case.

An initial attendance with Hooper Family Lawyers Brisbane can provide you with guidance as to how to best approach having your grandchildren re enter you life.

Paternity Testing

The Family Law Act 1975 provides that in certain circumstances the law will presume parentage. These presumptions arise as follows:

Paternity presumption arising from marriage;
Paternity presumption arising from cohabitation;
Paternity presumption arising from registration of parentage information i.e. Birth Certificate;
Paternity presumption arising from a court finding;
Paternity presumption arising from acknowledgement of paternity.

If the fact of parentage becomes an issue, the parties can agree undertake DNA testing or one party can seek a court order.

In applications for declarations that a person should not be assessed to pay child support pursuant to section 107 Child Support (Assessment) Act 1989, DNA testing is regularly ordered at the interim hearing stage.
Family Lawyers Brisbane can provide you with guidance as to how to best approach having your grandchildren re enter you life.

We are here for You

Sometimes good things fall apart, so that better things can Fall Together