Your child deserves living arrangements that support their happiness and development. That normally means having access to both parents – in a way that puts their needs first.
When you separate from someone you have a child with, it’s important to make sure your child’s needs are put first.
Normally, that means both parents take care of the child equally, unless there’s a reason not to.
Child custody or parenting arrangements are a way to formalise the care of your child.
You and your ex-partner can agree on arrangements (with a document known as a parenting plan) or get the Federal Circuit and Family Court of Australia to make legally binding arrangements for you.
Even if you think your ex-partner is reasonable, getting legal advice by the top child custody lawyers in Melbourne as soon as possible is essential.
Parenting plans aren’t legally binding, but, if constructed poorly, they can have long-term implications – including making it harder for you to get equal access to your child in the future.
The best way to approach any separation involving children is to seek the advice of an experienced child custody lawyer in Melbourne, keep things as amicable as possible, and act in the best interests of your child.
You and your ex-partner agree on how to parent your child in a formalised document.
If you can’t agree on certain aspects of parenting, you can try to reach an agreement through informal mediation.
Before you go to court, you’re required to undergo family dispute resolution (FDRR), a formal type of mediation held by an accredited practitioner.
When FDR fails, you can seek a parenting order from the FCFCOA, which is a legally binding directive that you must both abide by.
During a separation, it’s important to focus on what’s best for your child.
Normally, that means providing certainty about the future as quickly as possible – and preserving a working relationship with your ex-partner.
A parenting plan is an agreement between you and your ex-partner about how your child should be parented.
It must be in writing, signed, and dated to be valid.
A parenting plan isn’t legally enforceable, but the Court may consider it (and whether it’s been breached) if you do end up seeking a parenting order.
Importantly, it’s a quick, cost-effective way to agree on your child’s future, without the friction between you and your ex-partner that court battles create.
Parenting plans can deal with any aspect of your child’s care and development, including visitation schedules and child support lawyers melbourne.
Before you make a plan, get the advice of a solicitor or child custody lawyers in Melbourne (even if you do so privately).
Understanding your rights as a parent and the implications of a parenting plan is essential – issues that seem minor now, like where your children go to school, may well become more important in the future.
You and your ex-partner will always be connected by your child.
That’s why it’s normally best to keep your relationship as amicable as possible.
If you can’t agree on an issue relating to your child, you may not need to go to court to resolve it.
Alternative dispute resolution is cheaper, faster, and less divisive than seeking a parenting order.
You can opt for informal mediation or counselling (conducted with or without a lawyer) or go straight to family dispute resolution (FDR), a formal process conducted by an accredited FDR practitioner.
Because the Court holds that parents should aim to work out disputes between themselves first, attending FDR is mandatory before seeking a parenting order.
When you and your ex-partner can’t agree on how your child should be cared for, the Court can help you decide.
After being issued with a section 60I certificate (or being exempt from needing one), your lawyer can present your parenting order application to the Court.
This process begins when you’re granted a court date (after which your lawyer will serve your ex-partner with the application and supporting documents).
You can then choose to complete a Lighthouse risk screen.
In certain circumstances, such as if your child is at risk of harm or abduction, you can lodge an urgent application.
When you attend court, your lawyer will present evidence that supports your application.
Your ex-partner’s lawyer (if they have one) will also present counter-arguments, and the Court will then make a determination in relation to your matter.
Make sure you and your ex-partner are contributing equally to your child’s financial wellbeing.
Penny is a leading family law solicitor admitted in the Supreme Court of Victoria.
She has a broad range of expertise across multiple practice areas like family law, Wills and estate planning, and personal injuries, and is currently completing a Masters of Family Law.
Veronica is a family law solicitor with extensive experience in mediation, separation litigation, child protection, and intervention orders.
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A mother of three, Durra Baraz is a highly experienced family law solicitor with a background in HR.
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Ariane Ang combines experience in criminal and commercial matters with a focus on family law.
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If you’re currently going through a separation where children are involved, reading up on the basics of how child custody works in Victoria can be helpful.
Pre-action procedures are activities that must be completed before you apply for a parenting order – specifically, you must have attempted to resolve your dispute through family dispute resolution (FDR).
FDR is a type of formal mediation conducted by an accredited FDR practitioner. Ideally, you and your ex-partner will resolve your dispute and make a parenting plan. If that doesn’t happen, you’ll need a section 60I certificate to proceed with applying for parenting order.
You or your ex-partner can be issued a section 60I certificate under any of the following conditions:
It’s important to understand that you must be genuine when attending FDR. You can’t be unreasonable or unwilling to engage with your partner, or this will be reflected in the certificate the FDR practitioner grants. You also can’t use FDR as an opportunity to harass or intimidate your ex-partner.
Under certain circumstances, you don’t need a section 60I certificate, including:
When making parenting orders, the Court does so on the basis of the best interests of the child. Primary considerations include:
Secondary considerations include:
In short, the Court’s default position is that a child having a relationship with both parents is a good thing. Unless there are factors to the contrary, you stand a good chance of getting a 50/50 custody arrangement.
A custody ‘battle’ – that is, fighting your ex-partner’s wishes in court – is normally very expensive. Experienced family law solicitors charge between $300 and $600 per hour, but their daily rate when they represent you in court is typically ten times that amount.
As such, it’s almost always better to settle disagreements through mediation or family dispute resolution first (in fact, it’s mandatory that you undertake FDR before going to court). Settling a parenting dispute through mediation might cost, on average, around $20,000. Going to court will likely cost around $100,000.
Although it can be tempting to try to ‘win’ by getting a court order in your favour, think about what’s best for your child. If you and your ex-partner can settle your dispute between yourselves, you’ll both save money and time, and your child won’t have to see their parents engaged in an ugly courtroom battle.
Every family is different, and the best parenting arrangement for an individual child will vary based on a range of factors. In general, though, the law holds that it is desirable for the child to be able to access both parents equally.
Statistically, the chances of a father getting full custody in Australia are very low. According to a 2014 survey, the most common parenting arrangement around 18 months post-separation is for children to spend the majority of nights with their mothers (46% of survey participants).
The second most common arrangement is that the mother has sole parental responsibility (27%), with either paternal daytime visits (18%) or no paternal contact (9%). The third most common arrangement is roughly equal care-time (21%), followed by fathers having majority care (3%) and, finally, fathers having sole parental responsibility (2%).
This isn’t necessarily the result of court decisions – 97% of parenting arrangements are decided outside of court (5.7% through lawyers and 9.9% through counselling/FDR). Interestingly, in 10.4% of all separations, the parenting arrangements aren’t actually decided, and instead ‘just happen’.
As a father, you can make sure your child gets the appropriate care arrangements by being proactive about parenting arrangements and getting legal advocacy. Don’t let your child miss out on building a relationship with you – have a parenting discussion with your ex-partner and hire an experienced child custody solicitor.
If you’re subject to a parenting order, you have a legal obligation to take all reasonable steps to comply with it. This means you have to do what the order says, even if that involves extra effort. You can’t ignore or say you didn’t understand the order. You also can’t change the order simply by discussing it with your ex-partner. A parenting order stays in effect until the Court changes it (or, in some cases, if you enter into a parenting plan).
Failing to comply with a parenting order can have serious legal consequences. The Court may order you to compensate your ex-partner, change the parenting order, make a new parenting order, order you to attend a parenting program, require that you enter into a bond, order you to pay legal costs or a fine, order you to participate in community service, or even send you to prison.
The easiest way to deal with parenting orders is to hire an experienced family law solicitor. They can explain your order and what it means, and, if you think the order is unfair, can even help you fight it. They can also represent you in court if you fail to comply with an order.
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