We will fight for you and the best interests of your children if you are experiencing child custody disputes. We will provide you with compassion, empathy, understanding, whilst also giving you pragmatic and strategic advice to guide you in your decisions, to enable you to achieve the best practical outcome for you and your family.
Brisbane Child Custody Lawyers
Frequently Asked Questions (FAQ’s)
What exactly is child custody law?
Child Custody law is the law relating to the care, welfare and development of a child.
The term ‘custody’ is not used anymore in the family law courts. The court’s prefer to use the term ‘lives with’ and ‘spends time with’ when discussing the care arrangements of a child.
Why choose our Child Custody Lawyers Brisbane?
We understand that separation is often a traumatic time for our clients and that child custody disputes can often be fraught with emotion and are one of the most difficult issues to resolve.
By choosing Barton Family Lawyers you choose a Law firm Specialising in Family Law and child custody disputes with a strong reputation for delivering high quality service to our clients. Our child custody lawyers aim to deliver advice with empathy and understanding.
Our child custody lawyers over commit and over deliver to clients on what we promise in respect of the service we provide. Our child custody lawyers understand the long term impacts of child custody disputes on children and so it is our highest priority to help you resolve those issues, quickly and at the least possible emotional cost for you and for the children.
Our child custody dispute lawyers will guide you to make smart decisions following separation about your child custody arrangements that in the end will save you money and emotional stress in the long term. Child custody arrangements are one of the most important things to get right as the other party is going to be in your life forever in one way or another and so the manner of resolution of your child custody dispute is pivotal to maintaining a healthy post separation co-parenting relationship and ensuring the emotional and psychological health of you and your family.
How do I legally document our Child Custody Agreement?
Following separation, you and your ex partner can reach agreement in relation to the living arrangements of your children informally, by a Parenting Plan or formally by a Consent Order.
Whether you and your ex partner are amicable or not, it is in your interests to see an experienced child custody lawyer to reduce any agreement to writing either by way of a Parenting Plan or a Consent Order as it provides certainty for both parties and reduces the likelihood of child custody disputes arising with respect to the living arrangements of the children in the future.
Formalising the living arrangements for our children – Parenting plan vs Consent Orders
A Parenting Plan is a written agreement between you and your ex partner which sets out the future living arrangements for your children. A Parenting Plan is not required to be registered and is not enforceable by a Court. However, if Court proceedings are instituted at a later time, a recent Parenting Plan may be used as evidence in court of the intentions of the parties as to the living arrangements that are in your children’s best interests.
A Consent Order is an Order made by agreement which provides for the future living arrangements of your children that is made following an Application to the Court. A Consent Order will only be made by a court if it is considered to be in the children’s best interests. You do not have to go to Court to get a Consent Order.
The main difference between a Parenting Plan and a Consent Order is that a Parenting Plan is not legally enforceable whereas a Consent Order is enforceable i.e. there may be legal consequences if it is breached.
Therefore, in most circumstances, a Consent Order is the preferable option for a party wanting to ensure certainty and enforceability of the agreement with respect to the living arrangements of the children. As it is enforceable, if one party breaches it, there are remedies the other party can use to remedy the breach.
A Parenting Plan is most efficient where either of the parties have an amicable post separation relationship, it is unlikely that the agreement will need to be enforced (i.e. each party is likely to abide by it) or where circumstances of the parties and/or the children are changing or are likely to change in the near future and so it is likely that the living arrangements of the children documented in the Parenting Plan will need to be reviewed at a later stage.
However, even where parties are amicable post separation, circumstances can change in the future, especially if either parent re-partners or seeks to relocate. These factors can place strain on the relationship between the parents and cause parental conflict.
The primary advantage and disadvantage of a Consent Order is that it is not easily changeable. A consent order is in force permanently until the children are eighteen subject to an alternate agreement between the parties or a significant change in circumstances occurring, which is actioned by a party making an application to a court seeking a change to those orders.
If a Consent Order is in place and you wish to change it without the consent of the other party, you need to seek permission from the Court and you need to satisfy the Court that there has been a significant change in circumstances.
You should seek legal advice from our experienced family law experts as to what constitutes a significant change in circumstances and whether you would be entitled to apply to have a Court Order changed on this basis. You may also find our article useful entitled Can i change a Parenting Order?
What happens if we are unable to reach an agreement in relation to our children?
If you are unable to reach an agreement with your former partner as to the living arrangements of the children, the process is as follows:
Family law Mediation with a dispute resolution practitioner is a compulsory step that you must take prior to making an application to the Court for parenting orders. Whilst there are certain exceptions where mediation may not be required, for example, circumstances of urgency and/or risk, in the large majority of cases, you must participate in mediation first. A list of exceptions when you can seek an exemption from participating in mediation prior to making an application to the Court can be found on the Family Law Courts website. You can also check out our article on this topic: Do I have to mediate before Court? The exceptions explained.
When you file your application to the Court, you must prove that you have participated in Mediation by attaching a copy of your dispute resolution certificate, known as a ‘section 60I’ certificate. You should be aware that a section 60I certificate is effective for twelve months only.
To find a dispute resolution practitioner in your local area contact us for a list of private mediators recommended by us. You can also engage in mediation with a dispute resolution practitioner at Relationships Australia. Relationships Australia is a free service. However, mediation through Relationships Australia may take many months to arrange, whereas if you elect to engage a private mediator, you can arrange a mediation within a couple of weeks.
What is the process once I file an application for parenting orders?
On 1 September 2021, the Federal Circuit and Family Court of Australia merged to form the Federal Circuit and Family Court of Australia (FCFCA). There is now one central set of rules that governs this Court, known as the Family Law Rules.
The merger has resulted in major structural changes to the family law system. There is now a single point of entry into the court system for all matters, a new case management pathway, synchronised family law rules and a heavier focus on compliance with pre-action procedures and dispute resolution (mediation).
The primary objective of the new system is to provide a more efficient system of justice aimed at assisting parties through the process as quickly, safely and fairly as possible without undue cost and delay.
Learn more about the amalgamated family law rules, the increased emphasis on compliance pre-action procedures and the new case management pathway below.
The following case management pathway will apply to all applications filed in the Federal Circuit and Family Court of Australia, other than applications allocated to special lists including the Covid-19 List, the Evatt List, child support, child maintenance and divorce proceedings.
The new case management pathway will attempt to have all matters that are unable to be resolved listed for a Final Hearing within 12 months from the date proceedings were commenced.
To find out more about the process once your court application is filed and the documents you are required to file, click the link: Newsflash: What are the New Family Law Rules.
What parenting orders can I apply for?
Parenting orders are a set of legally binding orders made by a Court about the living arrangements and future long term health, care and welfare of your child.
A parenting order may deal with one or more of the following:
- who the child/ren will live with
- how much time the child/ren will spend with each parent and with other people, such as grandparents
- the allocation of parental responsibility
- how the child/ren will communicate with a parent they do not live with, or other people, and
- any other aspect of the care, welfare or development of the child/ren.
What factors are considered in family law child custody matters?
The paramount consideration of a Court in determining what parenting order it is to make, is the child’s best interests.
It is important to understand that in the eyes of the law, you as a parent do not have any rights with respect to your children, only responsibilities.
When considering what orders are in your children’s best interests, the primary considerations of the Court are:
- The children’s right to have a meaningful relationship with both of their parents;
- The right of the children to be protected from harm.
Where there is a conflict between these two fundamental rights of the child, the child’s right to be protected from harm is given greater weight by the Court.
There are additional considerations the Court is also required to consider in determining what orders are in the child’s best interests. These include:
- Views (or wishes) expressed by a child;
- The nature of the child’s relationship with both parents and other important persons;
- The extent the child’s parents have taken opportunities to spend time with/communicate with the child and participate in long term decisions regarding the child;
- The extent the child’s parents have fulfilled their obligation to maintain the child (child support);
- The likely effect of any change in circumstances on the child;
- The practical difficulty and expense of each parent spending time with the child;
- The capacity of the parents to provide for the needs of the child;
- The maturity, sex, lifestyle and background of the child and the child’s parents and any special characteristics of the child that are relevant;
- If the child is Aboriginal/Torres Strait islander;
- The attitude demonstrated by the parents to the child and responsibilities of parenthood;
- Any family violence involving the child or a member of the child’s family;
- Any family violence orders that apply;
- The order that would least likely lead to the institution of further court proceedings (if court proceedings are on foot);
- Any other fact or circumstance the court thinks is appropriate, including for example, the ability of the parents to facilitate and encourage the child’s relationship with the other parent.
A Court may make an Order for a child to spend equal time, or substantial and significant time, with both of the child’s parents.
Before making an Order for equal time or substantial and significant time, a Court must find that the arrangements are ‘reasonably practicable’. This is determined by:
- How far the parents live from each other;
- The parents’ current and future capacity to implement an arrangement for the child spending equal (substantial or significant) time with both parents;
- The parent’s capacity to communicate;
- The impact such an arrangement would have on the child.
There is no presumption that a child should spend equal time with each of the parents.
What does the court take into consideration when deciding on child custody cases?
The paramount consideration of a Court in determining what parenting order it is to make, is the child’s best interests.
It is important to understand that in the eyes of the law, you as a parent do not have any rights with respect to your children, only responsibilities.
When considering what orders are in your children’s best interests, the primary considerations of the Court are:
- The children’s right to have a meaningful relationship with both of their parents;
- The right of the children to be protected from harm.
What are parenting orders?
Parenting orders set out the living arrangements of your child/ren which have been made by a court. Parenting Orders may deal with things such as who the child/ren lives with, how much time the child/ren spends with each parent, parental responsibility, communication between the child/ren and they parent they do not live with and other issues relating to the child/ren’s care and upbringing.
When can a child choose which parent they want to live with?
There is no set age that a child can decide where they live. A court will look at things like the child’s age and maturity, the reason the child is expressing a particular view in conjunction with the recommendations made in the family report when deciding if the child’s view as to who they live with is given any weight when determining what parenting orders are in the child’s best interests.
Click here to view our free family law information video on when a child can decide where to live.
What impact do parents’ attitudes towards parenting and each other have in parenting agreements/orders?
The capacity of a parent to take care of the needs of a child including their physical, emotional and psychological needs is a relevant factor in family law child custody cases.
The ability of a parent to facilitate and encourage the relationship between the child and the other parent is also a relevant factor. Where a Court determines that one parent, as a result of their conduct, is not capable of facilitating and encouraging the child’s relationship with the other parent, that may impact the orders the Court deems are in the child’s best interests. In extreme cases, this can result in a change of custody of the child and restricted time with the parent who is deemed not to be capable of supporting the other parent’s relationship.
We have orders in place but the other parent isn’t adhering to them. What can I do?
If a parent is not following the court orders you can write to them or instruct a solicitor to write to them confirming they are in breach of the court orders. If the parent does not respond you may wish to have an independent mediator invite them to attend mediation with you to try and resolve the issue without having to go back to court.
If the other parent refuses an invitation to attend mediation you may decide to file an application in the court seeking a recovery order or your solicitor may advise that a contravention application is necessary.
The particular course of action that is appropriate will vary from case to case.
Click here to view our article on contravening a parenting order.
Do grandparents have any rights related to child custody?
Grandparents as well as other non-parent persons concerned with the care, welfare and development of a child have the right to apply for parenting orders to spend time with a child. All circumstances are different and the orders a court determines that are in a child’s best interests will vary from case to case. We recommend speaking with an experienced child custody lawyer to seek advice in relation to your individual circumstances.
What is a child protection order?
A child protection order is a direction from the Children’s Court requiring or authorising someone to do or not do something, such as giving Child Safety Services the custody or guardianship of a child and authority to place a child in out-of-home care. If the court agrees the child may be or is in need of protection, the Court may make an order that sets out what should happen to protect that child.
What is Sole Custody?
The term sole custody means one parent can make decisions with respect to their child including with respect to their living arrangements, care and welfare. This means the parent will not share the care of the child with the other parent and/or they want to have control over any time their child spends with the other parent as well as all decision making in relation to the child.
When do people get sole custody?
Whilst ‘custody’ is an outdated legal term that is no longer used or approved by the Court, it is certainly possible for the Family Court to make orders upon application by a resident parent, when those orders are determined to be in the child’s best interests, that the child live with the resident parent, that they have sole parental responsibility for long term decisions concerning the child and that the child spend no time, or ‘time as agreed’ with the other parent.
What rights does a parent with sole custody have?
Orders for sole child custody in effect give the live with parent ‘sole child custody’, in other words, the ability to ‘control’ any time and involvement the other parent has in that child’s life and in any decisions concerning the child’s long term welfare.
How do you get sole custody of a child?
To get sole custody of your child, you need to rebut the presumption of equal shared parental responsibility and prove to a court that sole custody of your child is in your child’s best interests. You can do this by applying to the court seeking that your child live with you, that you have sole parental responsibility for making long term decisions with respect to the child and that the child spend no time with the other parent. You should prepare an affidavit explaining why the orders you seek are in your child’s best interests and you will be required to compile evidence in support of your application. To locate the documents you are required to file when you file an application for sole custody, click the link. To learn more about the family court process when you apply for sole custody, click the link.
What do Judges look for in Child Custody Cases?
The paramount consideration of the Court in making any parenting order is always the child’s best interests. Speak to our Child Custody Lawyers Brisbane if you want sole child custody orders. Click the link to find out more about how to document a child custody agreement, the process if you can’t agree, what parenting orders you can apply for and how the court determines what orders are in a child’s best interests.
What should you not do in a child custody dispute?
Click the link to read our helpful list of the top ten things people do wrong in Custody matters.
Click the link to read what you should not do in a custody battle if you want sole custody.
What are the pros and cons of filing for sole custody?
However, there are pros and cons associated with instigating a parenting application in relation to a child where the other parent has chosen not to ‘step up’ and seek to exercise their parental responsibilities in the past.
If you are the live with parent, it may be wise in particular circumstances to ‘wait and see’ what happens and whether the other party instigates court proceedings and presses for time with the child.
Speak to one of our child custody lawyers Brisbane and let us help you decide whether filing an application for sole custody is the right or wrong choice for you and your family.
Want more information about child custody?
If you want more information on a specific area relevant to you, check our our family law articles:
- Fact Sheet – Children – A guide for separated parents
- How to spend more time with your children
- What is substantial and significant time
- Parental Alienation in Family Court Disputes – Part 1
- Parental Alienation in Family Court Disputes – Part 2
- Top 10 things people do wrong in child custody matters
- What age can a child decide where they live?
- Admissibility of recordings in family law cases
- Am I a parent?
- I’m Not a parent. Can I apply for a parenting order?
- I want sole custody
- Can I go to court without doing mediation first?
- Can parenting orders be changed?
- Relocation of Children
- Prevention is better than cure – interim relocation cases?
- Unilateral relocation of children
- International travel with children after separation
- My ex is breaching a parenting order. What do I do?
- When is supervised time ordered?
- Is a child’s changed views enough to change a parenting order?
- Interim parenting orders – why can’t the judge make the orders I want?
- When can you change your child’s surname?
- What is substantial and significant time?
- Domestic violence order applications – boosting prospects of success
You may also find the following family court information pages and fact sheets helpful:
- If you agree on parenting arrangements;
- If you do not agree on parenting arrangements;
- Compulsory Family dispute resolution – court procedures & requirements;
- Marriages, Families & separation;
- Parenting orders – obligations, consequences and who can help;
- Complying with orders about children;
- How do I apply for parenting orders?
Why use a child custody lawyer?
As child custody dispute lawyers experienced in this process we can advise you in regard to the complexities of your specific situation as well as guide you through what can be a stressful and confusing process. We can help take the heat out of a difficult emotional situation and negotiate on your behalf to obtain the best possible result for your children. And if it comes to court, we are deeply familiar with the court system and can use our experience to your advantage.
Click here to more information about non-parent parenting orders.