Children

We help you move on with confidence, closure and clarity.

Parenting matters are at the top of the agenda for any separating couple with children and can be the most emotionally difficult matter for the parties. Knowing the process for reaching a speedy resolution and receiving guidance from experienced professionals can however alleviate much of the difficulty.

At Lewis & McNamara, we understand the emotional impact a matter regarding your children can have on you and your loved ones. We work with you to lift the cloud of uncertainly from the  process and provide clear and concise advice to safeguard your children.

Below is a brief guide to what to expect when dealing with  children’s issues.

Mediation

In most cases, mediation is the first step in reaching a resolution concerning children’s matters.

Mediation can be private, or through organisations such as Relationships Australia or the Dispute Resolution Centre.

Often mediation results in agreement being reached, and if this is the case, the parties may record their agreement in the following two ways:-

  • Parenting plans do not have the force of a court order, and in the event of breach, there is no real consequence other than a court considering the actions of the parties in breach.
  • Consent orders are, by definition, orders of a court, and a breach of them can result in a fine or other sanction of a court, including contempt of court in extreme cases.

Mediation can be avoided if there are urgent circumstances which are of concern to a court such as family violence and   potential harm to children.

 

Interim Hearing

Once Court proceedings begin, an interim hearing, will be held. Generally this hearing is based on written material (in the form of affidavits) prepared by both parties.

The principles used by Courts to consider interim hearings were summarised in the case of Goode v Goode. The paramount consideration is the best interests of the child, which is the touchstone for all other considerations by the Court.

In light of these overarching considerations, the Court will, at an     interim hearing, consider the competing proposals of the parents and identify agreed facts, and issues in dispute taking into  account:-

  • the benefit to a child having a meaningful relationship with both parents;
  • the need to protect children from family violence in any household in which they are to live or spend time;any views expressed by the child taking into account any factors impacting those views such as the child’s maturity or level of understanding;
  • the nature of the relationship of the child with each parent and other persons (grandparents, relatives etc);
  • the likely effect of any changes in the child’s circumstances, including the impact of separation from parents, siblings or others that they live with;
  • the capacity of each parent to provide for the needs of the child, including emotional and intellectual needs;
  • the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) etc of the child and of each of the child’s parents;
  • the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
  • the benefit of an order that would be least likely to lead to the institution of further proceedings.

On the basis of these and other considerations, the Court will decide whether an order will be made for joint parental responsibility, or whether     another order is appropriate.

If joint parental responsibility for long-term decisions is ordered, (rather than just one parent having such power), then the Court is required to consider a shared care regime, which often takes the form of a “week-about” regime.

If joint parental responsibility for long-term decisions is not ordered, then the Court has to consider whether the Court orders “substantial and significant time”, which is further defined to mean more than every second weekend and half of the school holidays.

Often, the views of the children can be obtained through thepreparation of a Family Report by a psychologist or social worker.  The older the child is, the more weight their views will be given in  deciding where they are to live.  The views of young children do not carry much weight, but as children become older, their views from age 10 to 15 become increasingly important, to the point where a Court will not often intervene for children who are aged 15 years and older.

The orders actually made by the Court can take many forms, as each family and their circumstances are unique.  Please contact us if you wish to obtain more information.

Some more considerations

On the basis of these and other considerations, the Court will decide whether an order will be made for joint parental responsibility, or whether     another order is appropriate.

If joint parental responsibility for long-term decisions is ordered, (rather than just one parent having such power), then the Court is required to consider a shared care regime, which often takes the form of a “week-about” regime.

If joint parental responsibility for long-term decisions is not ordered, then the Court has to consider whether the Court orders “substantial and significant time”, which is further defined to mean more than every second weekend and half of the school holidays.

Often, the views of the children can be obtained through the preparation of a Family Report by a psychologist or social worker.  The older the child is, the more weight their views will be given in  deciding where they are to live.  The views of young children do not carry much weight, but as children become older, their views from age 10 to 15 become increasingly important, to the point where a Court will not often intervene for children who are aged 15 years and older.

The orders actually made by the Court can take many forms, as each family and their circumstances are unique.  Please contact us if you wish to obtain more information.

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