How to Get Custody
of Your Child
- Perth Family Lawyers with legal experience to suit your needs
- We are a full-service Perth Family Law firm
Obtaining custody of your child can be easy of both parents are co-operative but, it is not always that easy.
After a family break up making arrangements for the children of the relationship is one of the toughest aspects of a separation. Our family lawyers understand that making the right decision about children after separation is essential for guaranteeing you and your child’s health and happiness.
Where the parents agree on the arrangements, it is far easier to document this and move on with your life. However, where the parents do not agree on the arrangement, it can get very complex and inevitably, may end up in court.
At Appius Lawyers, we understand that Court can be a very expensive, inefficient and stressful process, especially when it relates to the arrangement for the children. We will work with you to avoid the litigation path where possible, and aim to achieve a workable solution best on the desires of the parents but most importantly a solution that is in the best interest of the child or children.
When dealing with children in Family Law; there are fundamental two issues that is ‘parental responsibility’ and ‘live with orders’, with the overarching principle in deciding for both being the concept of ‘the best interest of child’.
The concept of ‘the best interest of child’, means the court will hear from persons other than the parents of a child, where such parties have an interest and preservation of such ‘interest is in the child’s best interest’; including grandparents.
Best interests of the child and
equal shared parental responsibility
In Australia, the principle of “best interests of the child” is the foundation upon which children’s matters are considered by the Family Court. Under this concept the focus is on the child and what is best for the child, rather than the rights of parents to be involved in their child’s life.
The starting point for the court is that it is presumed that it is in the child’s best interest to have meaningful and significant time with each parent and that there should be joint parental responsibility, unless, the child is put in harm’s way. In considering the time a child will spend with a parent and live the other are practical question such as distance between the parents and the practicality of any such arrangements.
In addition to living arrangements of the child, the court will consider “equal shared parental responsibility” as starting presumption. This means that under the Family Law, it is assumed that each parent will have equal responsibility when it comes to making long terms decisions for the child.
If both parents agree on custody arrangements
If both parents have reached a verbal agreement, such agreement should be documented and formalised either by way of a parenting plan or consent orders. The family plan can be the foundation of formal court consent orders or evidence of the parents’ position where court proceeding is commenced.
Despite each being achieved amicably, the major distinction between the is that parenting plans are not enforceable, whereas, orders of the court even if done by consent are enforceable and legally binding.
No matter what stage you are at, we can provide you with meaningful legal advice. We understand that this can be a trying time, so we will work with you to provide clarity and guidance along the way. If you would like to speak to one of our lawyers, call us on 08 6181 0600 or complete an online enquiry form.
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Child Custody
FAQ - Frequently Asked Questions
A parenting plan is a written agreement between the parents setting out the structure of the living and care arrangement for the child. This approach allows for flexibility and works best in circumstances where the parents require this flexibility and are able to get along.
There is no right or wrong on what should be contained in a parenting plan as it is designed around the best arrangement as agreed between the parents. It can be revised when circumstances change.
Parenting plans may deal with any of the following:
- The parent the child will live with;
- The times the child will spend time with the other parent;
- Holidays and birthdays arrangements; and
- How major decisions about the child will be made.
Parenting plans may include the parameters around which the parents will communicate with the child’s grandparents, school, and medical practitioners.
It is important to note that parenting plans are not binding or legally enforceable. The parenting plan may be used as evidence of the party’s intention and as to what has worked in any family law litigation.
If you and the other parent do not agree on the care arrangement of your child, then subject to mediation needing to be attended, either party may make an application to the Court.
However, prior to filing an application for parenting orders, unless domestic violence or risk of child abuse is an issue or an urgent application is required, you must obtain a certificate from a registered family dispute resolution practitioner before an application is filed with the Court.
We will advise you and assist with this process.
Upon full hearing of a dispute the court orders will dictate amongst other matters where the child will live, who the child will spend time with, who has parental responsibility, who can communicate with the child, who will financially support the child and how major decisions will be made about the child.
A parenting order is binding and legally enforceable. In compliance all reasonable steps to comply with the order need to be taken including encouraging your child to spend time with their other parent, as required by the orders. This means that if the order states that the child is to spend every second weekend with their other parent, then you should encourage your child to spend the weekend with them and accommodate the same.
If your, the other parent, or the child’s circumstances change, if both parents agree to the change, then you can apply to the Court for a new parenting order.
If the parents do not agree, the first port of call should be family dispute resolution. If this is unsuccessful, then you will need to apply to have the court consider the circumstances to determine whether the change is required.
An agreement may also be formalised by way of consent orders. Consent orders are similar to parenting plans, in that the parents have come to an amicable agreement on the arrangements for their child, but with the difference that consent orders are filed in court and if accepted, are made into formal orders of the court and therefore binding and enforceable.
It is important to note that consent orders are not simply always accepted, as the Family Court will consider the proposed consent orders and determine whether to grant the consent orders on the basis of what is in the best interests of the child. If the Court is satisfied that the arrangements are in the best interests of the child, then they will formalise this by way of consent orders.
Having consent orders provides a level of certainty and security that a parenting plan does not. This is because if consent orders are breached, there will be legal consequences where as there is no similar consequences for breach of a parenting plan.
Sole parental responsibility, refers to an arrangement where one parent can make decisions relating to the child without having to consult the other parent.
The starting position of the court is to grant equal shared parental responsibility. Therefore, if you are seeking an order for sole custody, you must present evidence to satisfy the Court that equal shared parental responsibility is not in the best interest of the child.
Sole parenting responsibility may be granted where one parent is abusive and puts the child in danger. The parent claiming abuse must present evidence, including but not limited to police reports and witness statements in support this claim.
A parenting order typically expires once the child turns 18 years old, or where circumstances change and new orders are made by the court.
Features benefits from Appius Lawyers
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You Work Directly with An Solicitor
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02
Expertise and Creative Solutions
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More Flexibility with Fees
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The great thing about working with Appius Lawyers is that we focus and take the time to learn your industry, to understand your business and what we can do to help it move forward.
We give easy working proccess requirments
Step 1
Schedule An Appointment
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Step 2
Get Schedule
Once your appointment is “booked in”, you will be emailed a Client Interview Form to complete and return to us before our meeting.
Step 3
Your First Appointment
For the most part, initial appointments will last around an hour, give or take.
All initial appointments at Appius Lawyers must be paid for either in advance or on the day of the consultation if you are coming into the office.
Last Step
Become a Client
When you become a client at Appius Lawyers we will, first of all, assess the level of urgency in your matter.This is so we can arrange for the necessary legal and administrative resources to be allocated to your case. It will also determine how much you may have to deposit in our trust account for the requisite work to be undertaken.