Care of Children (Child Custody)

There are a wide variety of matters which may arise when dealing with children. We advise on all issues relating to children and will be able to advise you as to the best course of action.

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Care Arrangements

If you and your spouse or partner are able to agree on the care arrangements for children, you can decide whether you consider a verbal agreement to be sufficient or whether you would like the agreement to be formalised in writing. This can be done either by way of a Parenting Agreement, which is a private agreement between you and your spouse or partner, or by way of a Parenting Order made by the Family Court. If you are concerned about your spouse or partner adhering to the agreed arrangement, it would be prudent to obtain a Parenting Order.

If, however, you and your partner have been unable to agree on care arrangements, we can assist in negotiating an agreement on your behalf, failing which you may need to make an application to the Family Court for a Parenting Order.

If your matter is urgent, there are steps you can take in order to obtain appropriate parenting orders from the Family Court. The threshold which needs to be met for the making of urgent orders is relatively high and usually needs to involve a risk to a child’s safety or some kind of undue hardship.

If your matter is not urgent, there are a couple of steps you will need to complete before being eligible to make an application for a Parenting Order, namely, Family Dispute Resolution and a Parenting Through Separation programme. The following link provides more information on this process:

The costs involved in preparing and filing an application for a Parenting Order in the Family Court can usually be kept to under $2,000 plus GST and disbursements as well as the Court filing fee of an additional $220.  Of course, in more complex matters the costs can differ significantly and in the course of our initial consultation we will always discuss with our clients the likely costs involved in addressing their concerns and obtaining the results or orders that are being sought.

Guardianship Matters

Separate from care arrangements for children are guardianship matters. Fathers are not automatically a guardian of a child. A Father will be a child’s guardian if he is named on the child’s birth certificate or the parents were living together at any time during the pregnancy up until the time of birth. Guardians have a legal obligation to consult with each other in relation to all important decisions for a child. These decisions are known as guardianship decisions and include matters such as schooling, medical treatment, religion, naming, travel and place of residence.  

Relocation – Child Abduction

The decision to take a child out of the country is a guardianship decision which needs to be agreed to by both guardians. If you are concerned the other parent may take your child out of the country without your consent, there are immediate steps you may be able to take to prevent this from happening. You would need to make an application to the Family Court for an Order Preventing Removal and you may be able to make your application on an urgent basis depending on the circumstances. We may also be able to immediately implement a temporary border alert with Interpol if certain requirements are met.

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  • Can the Court assist me with care arrangements for my child/children?

    When parents cannot agree, upon separation, about the care arrangements for their children this may require the assistance of a family lawyer. Some parents are able to work towards a parenting agreement (which does not require Court intervention) whereas other parents require the Court's assistance to obtain Parenting Orders. Even when there is no conflict some parents prefer to go through the Court system as a Parenting Order is binding on both parties. When applying for a Parenting Order you must file an affidavit to accompany your application. These can be prepared by a family lawyer to make the process easier. A filing fee is payable to the Family Court when applying for a Parenting Order.

  • What happens if my ex-partner wants to re-locate to another city/country with our child/children?

    Where a child lives is a guardianship decision which both parents need to make together.

    If you are the parent wishing to relocate and you do not receive permission from the other parent to do so you will need to make an application to the Family Court to obtain permission to take the children. The parent wanting the relocation will need to satisfy the Court that the move will be in the best interests of the children, particularly if existing care arrangements with the other parent will need to be significantly changed as a result of the proposed move.

    If you are a parent wishing to relocate bear in mind that applications to the Family Court can take many months to process.

  • What is the difference between day-to-day care and guardianship?

    Both parents of a child/children are its guardians and parents should act jointly when making decisions about issues such as where the child lives, where he/she goes to school, what religion he/she practices and whether he/she should be given certain medical treatments. Guardianship does not cease when a parent does not have the physical care of a child.

    Day to day care involves making arrangements for a child's care on a daily basis.

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