Children & Custody Matters, Servicing Australia Wide

Your Obligations as a Prospective Party to a Case

Children & Custody Matters

Families, particularly the children, are the Court's 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 this 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 is to fully and fully disclose 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 the parties are:

A. Married,

B. In a De Facto relationship, or

C. Never entered a permanent relationship.

Generally, the Court Makes Orders About

A. Where the child or children live (residence order).

B. The time the child or children spend with the parent or any other party they do not live with (contact orders).

C. 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 child's best interests?

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.

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Lawyers Obligations

Lawyers must do the following 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 lawyer's opinion, it is in the client's best interest to accept a compromise or settlement where, in the lawyer's opinion, the compromise or settlement is reasonable.
In cases of unexpected delay, explain the delay to their clients and whether or not the client may assist in resolving the delay.
Advise clients of the estimated costs of legal action.
Advise clients about the factors that may affect the Court in considering cost orders.
Actively discourage clients from making ambit claims or seeking orders that the evidence and established principles, including recent case law, indicate are 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 unusual or you think 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 firm's website for even more details.

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