Child Custody – The Basics

The Australian legislature made significant changes to the way the courts approach custody issues in 2006. This legislation indicated a strong preference for parents to reach an agreement without resorting to litigation, and also for parents to enjoy shared parental responsibility.

Consistent with the legislature’s aims, you are required to attend family dispute resolution to reach an agreement before using the courts to determine your custody issues. After completion of family dispute resolution, you will be issued a certificate that must be filed with your application to the court for a parenting order. The court will not entertain an application without a certificate except for extreme circumstances (ie, threat of violence or abuse).

There are many dispute resolution methods you may use in order to reach an amicable agreement regarding custody. You may use the government sanctioned Family Relationship Centres and Family Advice Line, or you could use other methods such as collaborative law or arbitration.

Once you have completed the required dispute resolution process, you may apply for a parenting order. This order will address whom the child should live with, how much time the child spends with each parent, and the nature and type of communication the child should have with each parent among other issues. These orders are fully enforceable and failure to comply with a parenting order could have serious repercussions.

You may also reach an agreement with regard to parenting through something known as a parenting plan. A parenting plan is an informal agreement between parents that addresses similar issues that a parenting order would address. The major difference between a parenting plan and a parenting order is that the former is not enforceable like a court order and therefore the breaching party is not subject to the same sanctions.

Should you be unable to address your parenting issues through dispute resolution services or a parenting plan, you may litigate your case in court. There are certain procedural rules with regard to parenting proceedings that exist to make this process as smooth as possible for the child or children involved.

The main thing to keep in mind with regard to parenting is that all parties involved should be acting with the best interest of the child at heart. The court will apply this standard if asked to address parenting issues and it should also be the main consideration for parents when trying to settle their dispute.

By its very nature, separation and divorce is difficult, emotionally draining, and has a major impact on your life. However, if you have children, this emotional toll is only amplified. Your children may experience a lot of pain as you and your spouse or partner separate and they adjust to a new lifestyle of splitting their time with you and sleeping in two different homes. Because divorce is so hard for children to cope with, the Australian legislature has placed an emphasis on shared parenting, and ensuring that both parents continue to play an active role in the lives of their children after separation.

2006 Changes

The largest contributor to this concept of shared parental responsibility came in 2006 in the form of an amendment to the Family Law Act 1975. When passed, this amendment brought about the most significant change to family law in more than thirty years. The main objective of the amendment was to both support and promote the practice of shared parenting and urge parents to reach an agreement with regard to parenting arrangements on their own, without the interference of the courts.

An explanatory Memorandum that accompanied the amendment further expressed that the changes were intended to “represent a generational change in family law and aim to bring about a cultural shift in how family separation is managed: away from litigation and towards co-operative parenting.” Through this amendment Australia took a significant step towards making divorce easier on children.

Not only did the amendment express a desire for parents to reach an agreement on their own, but it also stressed the importance of both parents continuing to take an active role in the parenting of the child. The amendment expresses a desire for parents to jointly share duties and responsibilities, and also for children to be cared for and spend time with both parents.

While this article is designed to give you an in depth look at how parenting arrangements work, through litigation or otherwise, bear in mind that often the most ideal way to settle a difference is to reach an agreement without involving the court. Children benefit from having both parents involved in their lives, so the best thing you can do for your child is to reach an agreement where each parent has meaningful involvement, and refrain from having your parenting issues heard in court.

Shared Parental Responsibility

The term “parental responsibility” is defined in the Family Law Act as: “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.” This has been understood to mean that parental responsibility encompasses living arrangements, medical treatment, education, religious upbringing, protection from harm, and the responsibility to keep the child safe among other things.

You may be wondering, what exactly did the legislature mean when it expressed a preference for shared parental responsibility? Does that mean the child should spend equal time with each parent? Should each parent spend equal money on the child? Should each be allowed to make decisions about the child’s religion, schooling, and extra-curricular activities? Generally speaking, the answer is yes.

Australia’s preference for shared parental responsibility means that both parents should have involvement in the child’s life, make decisions with regard to the child’s upbringing, and contribute to the general welfare and needs of the child. The courts will not allocate or assign responsibilities unless disputes arise that the parents are unable to resolve. Furthermore, should a court order be silent with regard to parental responsibility, both parents are to retain the responsibility.

As you can see, Australia has strong preference for parents to share in the upbringing of the child, despite separation or divorce, and the courts are reluctant to make decisions regarding specific parental responsibilities. The Amendment discussed above in fact created a rebuttable presumption that it is in the best interest of the child to have both parents share equally in their responsibility, care, and upbringing.

It should not come as a surprise that very rarely do the courts take action to limit the parental responsibility of a parent, it takes extreme circumstances affecting the welfare of the child for the court to intervene and do such. Specifically, the rebuttable presumption discussed above is only abandoned where there is a threat of abuse, violence, or if allowing the parent to have control over the child is contrary to the child’s best interests.

Equal Time

Sometimes the concept of shared parental responsibility can be difficult when it comes to how much time the child spends with each parent. Equal time is often harder to organize than equal responsibility with regard to general decision-making, education, and religion. Allowing each parent to have equal time can raise logistical issues, which the court has addressed.

While there is a rebuttable presumption that equally shared parental responsibility is in the best interest of the child, there is no presumption with regard to the amount of time each parent has with the child. Before the court will issue an order allowing for equal time to be shared by the parents, it must first determine that such an arrangement is in the child’s best interest and reasonably practical.

There are advantages and disadvantages to allowing your child to spend equal time with you and your former spouse or partner. Each child is different and will respond differently to a divorce, and should you need a court order determining custody, the court will consider both the child’s interests as well as whether splitting time equally is reasonably practical. When determining whether equal time is reasonably practical the court will consider the following factors:

• how far apart the parents live form each other
• the parents current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents
• the parents current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind
• the impact that an arrangement of that kind would have on the child
• such other matters as the court considers relevant

As you may have guessed, courts rarely grant parenting orders allowing for equal time. While the best interest of the child is paramount to the court’s decision, it also considers the practicability of the order, and more often than not equal time is not found to be reasonably practicable.

Day-to-Day Decisions

Generally speaking, the parent who has the child in their care is responsible for the day-to-day decisions – like what the child eats, wears, when the child goes to bed, and what activities the child does. These day-to-day decisions can be made unilaterally, without consulting the other parent. However, the big decisions, otherwise known as “major long-term issues” are to be decided by both parents. The Family Law Act has enumerated certain issues that fall into the major long-term category, they include but are not limited to: education, religion/cultural upbringing, health, name, and living arrangements.

What happens first?

We have discussed how Australia’s preference for shared parental responsibility and for settling matters without litigation, so you may be wondering how the process works, and what happens first? This article will discuss the non-litigious ways to reach an agreement before discussing how parenting litigation works.

Step one to reaching a parenting agreement is to participate in something called family dispute resolution (otherwise known as alternative dispute resolution). All courts require compliance with primary dispute resolution, and you must obtain a certificate from a family dispute resolution practitioner prior to filing for a parenting order. The purpose of required family dispute resolution is to encourage early and full disclosure of relevant information, and allow parties to engage in a process that not only avoids legal action but also minimise s cost.

While participating in family dispute resolution, the focus of the parties is to be upon the best interest of the child, and parties should be open to negotiation, arbitration, and counselling.

Unless you can show good reason for not having followed the family dispute resolution requirement, non-compliance can result in serious cost consequences. There are only several exceptions to this requirement that excuse you from having to file a certificate from a family dispute resolution practitioner. The major exception is where the court finds that there has been or is a risk of abuse or family violence of the child. While there are several other exceptions, keep in mind that should you fail to comply with this requirement, it could cost you.

Family Relationship Centers and Family Advice Line

As part of the push to get families to reach agreements with regard to parenting issues without resorting to litigation, the government introduced both Family Relationship Centers and a Family Relationship Advice Line. Both programs are government sanctioned and designed to encourage parties to resolve disputes and enter into parenting plans.

The purpose of the Family Relationship Centers (FRCs) is to allow parents to reach workable arrangements for their children with the help of FRC staff. The staff members are not only trained with how to give advice concerning disputes, but also are trained in identifying issues of family violence and abuse. Furthermore, while the staff does not administer legal advice, it has the ability to place parties in communication with Legal Aid and private practitioners to obtain the legal advice they need.

The Family Advice Line is available from 8 am to 8 pm Monday through Friday, 10 am to 4 pm on Saturdays and can be reached at 1800 050 321. Not only is this service available to the parents, but also is available for grandparents, stepparents, children and friends.

The purpose of the Family Advice Line is to provide information about the family law system, separation, how to maintain relationships, and the impact of conflict on children among other things. This service is free, and may remain anonymous should you chose to keep your identity unknown.

Other Methods of Dispute Resolution

Mediation is another type of dispute resolution that doesn’t involve the courts. Benefits to choosing mediation are that it can be less expensive than litigation, your case can be heard sooner than it could in Family Court, and the parties have greater control over the process.

Collaborative law is another option for dispute resolution, and allows for parties and lawyers to meet in four-way meetings. This allows the parties to stay directly involved in the communication and negotiations. A major distinction with collaborative law is that the parties and lawyers agree in advance not to go to court.

Parenting Orders

After you have attended mandatory family dispute resolution and come to an agreement, you may apply to the court for a parenting order. Any person concerned with the child’s welfare may submit an application for a parenting order, however in most cases it is a parent, the child, or a grandparent who are seeking such an order.

With regard to parenting orders, the emphasis is on the best interest of the child. The court considers this to be the “paramount principle.” The primary considerations viewed by the court are allowing the child to have a meaningful relationship with both parents and also to protect the child from violence, abuse, and/or neglect. The court will also give consideration to a myriad of other factors, including the events that have occurred since separation.

After considering all relevant factors, the court can issue a parenting order that discusses parental responsibility, with whom the child will live, how much time the child spends with each parent, and how much communication the child has with each parent.

If you would like to modify a parenting order after it has been issued, you should first seek the assistance of a lawyer. Only if you are still unable to reach an agreement should you apply to the court for further help. At this point the court can order both parents to attend a parenting program, or it can consider varying the order.

Non-Compliance and Parenting Orders

You should avoid breaching a parenting order at all costs; the court takes breaches of its orders very seriously and you could even potentially face goal time upon breach.

Australia has adopted a three-stage approach designed to both educate parents as well as impose sanctions when noncompliance occurs. Stage one addresses educating the parents about the nature and effect of parenting orders. Stage two is invoked upon the first breach of a parenting order, and requires the breaching party to attend an approved parenting course. When there are subsequent breaches, stage three permits the court to impose serious sanctions such as fines or imprisonment.

Parenting Plan

A parenting plan is a written document discussing any agreements reached between parties with regard to matters affecting their children. They differ from parenting orders in that they do not require the court’s involvement; they are simply informal agreements reached by the parties.

A parenting plan should detail responsibilities and rights of both parents and it’s aim should be to create an arrangement in the best interest of the child. A parenting plan should include a break down of time that each parent is to spend with the child, discuss where the child will spend holidays, payments for the child’s expenses, and any other aspect of the care, welfare or development of the child.

The court will refuse to grant a divorce order unless it is satisfied that proper parenting arrangements are in place, and if the parties are unable to provide a plan the court will do it for them.

While it is permissible (and usually recommended) that parents agree to a parenting plan on their own, should this not be an option in your situation then you can resort to the other methods of dispute resolution we have discussed.

It is possible to have both a valid parenting plan and a valid parenting order. Typically, this situation arises when the order discusses significant topics (such as where the child will live) while the parenting plan manages the more intricate issues (for instance, how the child should be disciplined).

A major distinction between a parenting plan and a parenting order is that a parenting plan is not enforceable; it cannot be registered by the court and parties in breach of a parenting plan are not subject to the same sanctions as parties breaching a parenting order. For further discussion addressing the differences between a parenting plan and a parenting order, please see our FAQ that tackles this issue.

Independent Children’s Lawyer

In some cases, it is necessary to appoint an independent child’s lawyer (ICL) to represent the child’s interest. Parties can request this, or the court may appoint an ICL on it’s own initiative. In determining whether this appointment is necessary the court will consider a myriad of factors, including but not limited to: allegations of child abuse, conflict between parties, issues of cultural or religious differences, sexual preferences of the parties, mental illness, and the proposed separation of siblings.

The role of the ICL is not to be the child’s legal representative, but rather to act as an “honest broker” throughout the legal proceedings. An ICL is charged with the task of forming an independent view of the evidence and to act in the best interest of the child. The presence of an ICL should minimise the trauma to the child and facilitate an agreed resolution of matters in the best interest of the child.

Any information that a child shares with an ICL is deemed to be confidential, unless the ICL considers disclosure to be in the best interest of the child.

What the Child Wants 

Undoubtedly a child will form an opinion about where they want to live and whom they want to live with throughout your separation and divorce. A frequent question that arises is whether the child’s wishes are considered when determining custody arrangements.

A child is not required to disclose their wishes, however the court is required to consider their views should they chose to express them. The court will balance the child’s view with their age and degree of maturity before determining how much credibility to give the child.

Court Proceedings

It is clear that the preference in Australia is for parties to reach agreements with regard to parenting and custody issues without involving the court. However, this is not ideal in every situation. Some separations and divorces are particularly contentious, some involve issues of violence, and other times the parties simply can’t reach an agreement using dispute resolution. Should that happen, there are certain rules in place to protect children if their parents end up litigating child related issues

The court takes on several principle roles when it comes to child related proceedings. First, during the proceedings the court is to consider both the needs of the child and impact that the proceedings may have on the child. Essentially, the court’s role is to minimise any trauma experienced by the child throughout the proceedings. The court is charged with actively directing, controlling and managing the conduct of the proceedings. Additionally the court is to conduct proceedings in a manner that will protect the child from violence or abuse, promote cooperative child-focused parenting, and reduce delays, formality, and legal technicality.

Additionally, there are certain logistical things the court can do to help protect the child. For instance, the court is required to address as many irrelevant issues as possible on one occasion, which shortens the overall proceedings and lessens the impact on the child. Also, the court may schedule hearing dates close to each other so that the child will not be impacted by lengthy times between hearing dates. The court can also limit the number of witnesses used, the technology used, and again, encourage the parties to use dispute resolution services.

Another question that often arises when parties must litigate matters concerns the evidence that may be shown. The most common types of evidence are as follows:

• application and affidavit of the parties
• expert affidavit
• oral evidence (testimony)
• testimony/reports from an independent children’s lawyer
• family consultant’s report

While litigation is certainly an option for parties dealing with custody issues, it is clear that the preference is for parents to reach an amicable agreement by way of a parenting agreement or a parenting order achieved through dispute resolution.

In custody disputes, one of the issues parents often disagree over is which parent will decide the major long-term issues; such as where the child will attend school, what the child will be named, and the religion and cultural upbringing the child will experience. Generally speaking, the parent who physically has the child in their custody will decide the day-to-day decisions, but what about these bigger and more impactful decisions?

What is a major long-term issue?

First we should take a look at what exactly constitutes a major long-term issue. The Family Law Act defines that these issues are those about the long-term care, welfare and development of the child and includes (but is not limited to) issues of that nature about:

• education (both current and future);
• religious and cultural upbringing;
• health
• the child’s name and
• changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent

Some issues might not be major long-term issues on their face, but the results of the decision impact the child and thus make it a major long-term issue. An example of this is would be where a parent starts a new relationship. This by itself would not be considered a major long-term issue, however if it results in the parent moving further away from the child it becomes one.

Generally, decisions about what the child wears, what time the child goes to bed, and what the child eats are not considered major long-term decisions. These decisions are typically made by whichever parent has the child in their custody. For instance, the father may decide while the child is in his care he will go to bed at 8:00, and the mother may decide that 7:30 is an appropriate bedtime. These decisions do not impact the long-term welfare of the child, and are not typically disputed.

However, sometimes an issue that appears to be a day-to-day decision is actually a major long-term decision. This may be the case where the parents have differing views about the religious or cultural upbringing of the child. One parent may not want the child to eat certain foods or receive certain medical treatment because of a religious practice, while the other parent may not follow the same practice. In this situation the decision about what food the child will eat has become a major long-term decision, and will be treated as such by the court.

Who makes the major long-term decisions?

If you have read our other articles about custody, you have noticed a trend. The law in Australia strongly prefers for parents to reach amicable decisions regarding custody without using the courts, and also for parents to share parental responsibility of the child. So, it may not come a surprise that when it comes to making major long-term decisions, that the decisions should be made jointly. This isn’t merely a preference; the Family Law Act actually imposes an obligation on parents to make a genuine attempt to reach a joint decision. Only if you are unable to do so, after attending dispute resolution, may you apply to the court for an order addressing the conflict.

Rules about specific major long-term issues

Changing the child’s name. If you wish to change your child’s name, each person with parental responsibility for the child will have to agree. If you are unable to get the other parent on board with the proposed name change, you may make an application to the court, and the court will make the decision while considering the welfare of the child. In determining if the proposed name change should be made, the court will look at several factors, including both the short and long-term effects, embarrassment expected on behalf of the child, identity confusion of the child, and the effect the change will have on the relationship between the child and other parent. Before you may apply to the court for a name change, however, the Family Law Act requires the parties to attend dispute resolution in an attempt to resolve the issue.

Relocation. Relocation is one of the most common major long-term issues that parents tend to disagree over. After enduring a separation or divorce it is not unusual for one parent to want to relocate. The parent may wish to relocate because of an employment opportunity, because of a new relationship, to be closer to family, or simply to make a fresh start. However, if the parent wishes to relocate the child as well, often the non-moving party will object. This is obviously a difficult subject, and one that is emotional for all parties, including the child. Unfortunately, there is no guiding provision in the Family Law Act, and no case that carves out a definitive rule regarding this issue. The courts have consistently determined that the same guiding principle applies to relocation cases as to other major long-term cases, and that principle is to make a decision that is in the best interest of the child.

When it comes to settling disputes about major long-term issues, each situation is different and has it’s own unique circumstances. It is always best to try and reach an agreement without involving the courts, however if this is impossible, you may apply to the court for an order resolving the dispute. The court will always act under the principle that the best interest of the child is of paramount importance, and this is the same guiding force you should adopt in your attempt at reaching an agreement.

Hi, I’m Vanessa Mathews from Byron Bay Family Law & Mediation Specialists. Today’s topic is children and parental responsibility. I’m going to provide you with some of the basic information you should have before you begin discussing child custody with your spouse or partner.

I also suggest you read the information provided on our website at mathewsfamilylaw.com.au and I highly recommend that you speak with a lawyer before signing anything or filing any court documents.

Often I find that people forget the most important part of their parenting dispute, which is of course, their children. Unless one parent is a physical or emotional danger to the children, most children are better off in the long run maintaining a close and meaningful relationship with both parents. The less fighting between you, the better it is for your children.

Before you begin discussing the children with your partner or spouse, there are a few important terms to remember. First, there’s equal shared parental responsibility. Australian law changed a few years ago and today, parents are generally given equal shared parental responsibility for their children. This doesn’t necessarily mean that the children live in both homes equally, but rather that both parents have the same rights in making major decisions for the children.

The other important term is custody which means who the children live with. There is primary custody where the children live more with one parent than the other, then there’s shared care, where the parents have more shared time with the children. You and your partner can also come up with your own parenting agreement, which is an arrangement for taking care of your children.

A good parenting agreement should be as detailed as possible. It should include where the children will be on each days of the week and during the school holidays, how major decisions for the children will be made, such as the religion they have to be raised in and the schools they will attend. The agreement should also look towards the future. For example, by anticipating the changes from primarily to secondary school, extra- curricular activities and healthy expenses such as orthodontics.

A good parenting agreement will also have a way for resolving disputes. So, when there is a disagreement, there is a clear way to solve the problem. For example, some couples require that they first sit down and talk to each other to come to a compromise. Others might decide that it’s best to turn to a mediator or family dispute resolution practitioner.

You can submit this agreement to the court for approval, which makes it binding on both sides this is called a consent parenting order or you can opt for a parenting plan, which is not binding on either of you. If you can not agree between yourselves, you can bring the dispute to the court and a judge will decide for you.

We believe it’s always better for parents, and not the judge, to decide about children as it is you who knows what’s best for them. The co-parenting calendar on the Byron Bay Family Law & Mediation Specialists website will help you and your spouse or partner to plan your children’s living arrangements. I’m Vanessa Mathews at Byron Bay Family Law & Mediation Specialists.

While there is no inherent right for grandparents to spend time with or care for their grandchildren, the Family Law Act does provide some protection for grandparents. When it comes to settling custody disputes, the court is always going to act with the best interest of the child at heart. Sometimes, this will require removing a child from the care and custody of a parent and placing that child with a grandparent. Although rare, circumstances do exist which warrant this type of action.

There are two ways in which a grandparent may seek a parenting order. The first is by making an application to communicate with and spend time with their grandchild. This type of application may be appropriate where a parent has chosen to sever are relationship with the grandparent, and is not allowing the grandparent to spend meaningful time with the grandchild. A grandparent may make this application regardless of whether the parents are separated or not.

The second action available to grandparents is to apply for an order seeking parental responsibility for the child. This action will only be appropriate in extreme circumstances, where both parents have proven they are unfit or unwilling to care for the child.

Grandparents who are concerned about visitation rights may rest assured that they are permitted to take action seeking visitation, and sometimes-even custody, of their grandchildren.  The guiding principle in custody actions is ‘what is in the best interest of the child,’ and the relationship between a child and their grandparent will certainly be considered. If the grandparents had historically been present and involved in the child’s life the court will be inclined to allow the grandparent to continue this relationship despite the breakdown of the parent’s relationship and their subsequent refusal to let the child spend time with the grandparent.

Grandparents (or with an ongoing relationship with the children) can apply for an order to spend time with them.

As long as it is in their best interest, children have a right to spend time with significant people in their lives.

Grandparents must show that an order to spend time with the children is in the best interests of the children. They also may need to attend family dispute resolution before they can apply to the Court.

There is a strong preference in Australia for parents to reach an agreement regarding custody without resorting to litigation. In the hope of achieving this goal, parents are required to attend dispute resolution and make an effort to resolve any custody issues on their own.

If you are able to finalise custody through a parenting order or parenting plan, without going through litigation, your child’s wishes should certainly be a factor in how you determine custody. The guiding light when it comes to children’s issues is that you (and the court) should act in the best interest of the child. If your child voices a preference to spend more time with one parent, or there is a clear bond between the child and one parent, this should certainly be considered while you work out custody issues.

Both parents should work to reach an agreement that suits the needs of the child, and considering the child’s wishes is often the best way to determine what the best interests of the child are.

What if you aren’t able to reach an amicable custody arrangement and you require the court to determine custody? Will the court entertain your child’s preference to live with one parent over the other?

The answer is yes. The court must consider the views of the child in determining the child’s best interest. While it is not a requirement for a child to disclose his or her wishes, should they choose to express them, the court must consider them. However, simply because the child voices a preference for one parent, does not mean that parent will automatically be given preference in the custody dispute. The court will balance the child’s wishes along with their credibility. A child’s age and maturity are relevant factors in determining credibility.

So whether you plan to reach an amicable agreement with your ex-spouse, or if you must resort to litigation to decide a custody arrangement, the child’s wishes are of the utmost importance. Considering the child’s views is a necessary step in determining the best interest of the child.

Wilson & Wilson – [2013] FamCAFC 43

This is an appeal on parenting orders granted by the Federal Magistrate Court.  The father appealed orders by the court granting the mother permission to relocate their child from Sydney to Newcastle.  The appeal was accepted and remanded for a rehearing.

The father, aged 57 and the mother, aged 52, had one child together, born in 2001.  The parents bought a home together in Sydney in 2004 and separated in the summer of 2007.  At that time, the mother worked from home as a bookkeeper and the father worked as a contractor for a consultancy company.

Initially, the parents were able to work out parenting arrangements.  From the time they separated, the child lived with the mother and spent time with the father from Friday afternoon until Sunday morning.  When, however, the mother asked the father’s permission to relocate with the child to Newcastle, some 118 kilometers from Sydney, the father refused.  The mother turned to the court for parenting orders and permission to relocate and the father sought orders restricting the mother to the Sydney area.

The mother had several reasons for relocating.  The parents agreed to sell the family home and the mother believed she would not be able to find affordable housing in Sydney.  She also wanted to reduce her work hours in order to spend more time with the child.  Her final reason for requesting relocation was to be closer to good friends in Newcastle since she was isolated in Sydney.  She asked for shared responsibility, that the child live with her and spend every second weekend (Friday afternoon through Sunday) and half the school holidays with the father.  The father asked the court to give them share parental responsibility, that the child live with the mother within a 15 km radius of Sydney and that he have the child three out of four weekends a month for three nights.

The child in question was 11 years old at the time of the divorce, suffered from ADHD which manifested itself in difficulties in school work and making friends.  The child was close to both parents, but had a stronger relationship with his mother.  An expert witness during the initial trial in the Federal Magistrate court stated that the move to Newcastle could potentially harm the child since change was difficult for him.  The expert also said the move would impact negatively on his relationship with his father since the drive to Sydney would be tiring and the child might want to stop making the visits.  Additionally, he would be seeing his father less frequently.

While the Federal Magistrate noted these claims, she considered the mother’s reasons in the equation as well.  She held that in order to provide the child with close to the same standard of living, the mother would, at the very least, need to move to the outskirts of Sydney, further from the father, or she would have to downsize to a small apartment to stay close by.  She would also be required to work her current hours, or longer, in a place where she felt isolated.  The father, on the other hand, was not required to make any changes.  The Federal Magistrate felt that placing the mother in this situation, when she is the primary caregiver for a child with special needs, might result in the child “not receiving the level of parenting he has hitherto enjoyed from his mother”.  The Federal Magistrate ruled in favor of the mother and allowed her to move to Newcastle.

Lower Court did not Weigh Evidence Correctly

The Family Court accepted the father’s claims on appeal, taking into consideration the testimony of the expert witness.  Overall, the court found that the lower court had not given appropriate weight and consideration to the expert witness, who expressed her concerns that the move itself could be damaging to the child.  In particular, the Family Court ruled that the Federal Magistrate was mistaken when she found: (1) the child’s relationship with the father would not be negatively affected by a change in the quantity or nature of the time they spent together; (2) that a move to Newcastle would not negatively impact on the quality of time the father and child spend together; (3) the child was okay with change he was prepared for and; (4) that the best interests of the child were met by the mother having an “unencumbered property with a backyard”.  The court found that the lower court did not appropriately weigh the evidence in considering the best interests of the child.  The case was sent back to the lower court.

 When there is a dispute over custody sometimes it is appropriate to have an independent children’s lawyer appointed. An independent child’s lawyer takes a proactive role and acts as an “honest broker” during custody proceedings as the child’s legal representative.

This person does not take instruction from the child, but rather they are to form an opinion after viewing the evidence and act in the best interest of the child. They are impartial, and are to ensure the child’s views are expressed in the proceedings, and make sure that all relevant matters are drawn to the court’s attention.

An independent children’s lawyer will not automatically disclose conversations with the child to the court. Rather, he or she will only disclose this communication if it is in the best interest of the child. However, if the lawyer determines that is in fact in the best interest of the child to share contents of the conversation with the court, it may do so even without the child’s permission.

When deciding whether the appointment of an independent children’s lawyer is proper, the court will consider a list of factors, that hail from a 1994 case.  Some of these factors include:

• allegations of child abuse
• intractable conflict between the parties
• issues of cultural or religious difference
• where the sexual preferences of one or both parents impinge on the child’s welfare
• issues of significant medical, psychiatric or psychological illness or personality disorder relating to the child or the parties
• where it is not appropriate for the child to live with either parent
• the proposed separation of siblings
• where one party wishes to relocate the child which would exclude the child from spending time with the other parent

An independent children’s lawyer is not necessary in most custody proceedings. Typically, they are only appropriate where the custody dispute is highly contentious, there are allegations of violence, or other extreme circumstances exist. If you think your case is one in which your child would benefit from representation by an independent children’s lawyer, you simply need to make an application to the court. Occasionally, the court will take action on it’s own initiative if it determines that doing so is in the best interest of the child.