Children & Custody Matters

Children & Custody Matters

Your Obligations As A Prospective Party To A Case

Families, particularly the children, are a courts first consideration when resolving or determining family disputes.

At all stages during the pre-action negotiations and during the case itself, should you ultimately apply to a court you must keep in mind.

  • The need to protect and safeguard the interest of your children.
  • The importance of a continuing relationship between your children and both parents, and the benefits the child gains from the parents co-operating with one another, as far as is possible.
  • The potential damage to a child involved in a dispute particularly if a child is encouraged to take sides or take part in any dispute between the parents.
  • The importance of identifying issues early and exploring options for settlement.
  • The need to avoid protracted, unnecessary, hostile and inflammatory exchanges.
  • The impact of correspondence on the reader, particularly on the other party in the case.
  • The need to seek only those orders that are realistic and reasonable on the evidence and that are consistent with current law.
  • The principle of proportionality and the need to control costs.
  • The duty to make a full and frank disclosure of all material facts, documents and other information relevant to the dispute.

Parties must not:

  • Use the pre-action procedure for an improper purpose (for example , to harass the other party or to cause unnecessary cost or delay), or
  • In correspondence, raise irrelevant issues or issues that might cause the other party to adopt an entrenched, polarised or hostile position.

The Family Court (The Court) has the jurisdiction to make parenting order(s) concerning children whether or not the parties are:

  1. Married,
  2. In a De Facto relationship, or
  3. Never entered a permanent relationship.

Generally the Court makes orders about:

  1. Where the child or children live (residence order).
  2. The time that the child or children spend with the parent or any other party that they do not live with (contact orders).
  3. Other matters to do with the child or children’s care (specific issues orders).

The Courts paramount consideration in making a parenting order(s) is the following test:

What, in all the circumstances, would be in the best interests of the child?

Child Custody

The Family Law Act requires the parties to comply with the pre-action procedure prior to commencing a case. The objectives of such action are:

  • To encourage early and full disclosure through the exchange of information and documents about the prospective case.
  • To help people resolve their differences quickly and fairly, and to avoid legal action where possible. This will limit costs and hopefully avoid the need to start a court case.
  • Where an agreement cannot be reached out of court, to help parties identify the real issue in dispute. This should help reduce the time involved and the cost of a case.
  • To encourage parties to seek only those orders that are realistic and reasonable on the evidence.

Lawyers Obligations

Lawyers must as early as practicable:

  • Advise clients of ways of resolving the dispute without starting legal action.
  • Advise clients of their duty to make full and frank disclosure, and of the possible consequences of breaching that duty.
  • Subject to it being in the best interests of the client and any child, endeavour to reach an agreement rather than start or continue legal action.
  • Notify the client if, in the lawyers opinion, it is in the clients best interest to accept a compromise or settlement where, in the lawyers opinion, the compromise or settlement is a reasonable one.
  • In cases of unexpected delay, explain the delay to their clients and whether or not the client may assist to resolve the delay.
  • Advise clients of the estimated costs of legal action.
  • Advise clients about the factors which may affect the Court in considering costs orders.
  • Actively discourage clients from making ambit claims or seeking orders which the evidence and established principles, including recent case law indicates, is not reasonably achievable, and
  • Provide clients with documents prepared by the Court about:
    • The social and legal effects of separation
    • The services provided to families by the Family Law Courts and by government, community and other agencies, and
    • The obligations created by an order and the consequences for failing to comply with an order.

If your circumstances are or if you think that your case is complex and you need to retain professional services you can always contact us on this site for professional and comprehensive advice or please visit our firms web site for even more details.