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Legalese and Parenting Matters

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Legalese and Parenting Matters

Family Law Practitioners no longer refer to terms such as “custody” “access” and “guardianship” when dealing with parenting matters as these terms imply ownership. There are no property rights which attach to children.

Instead the following terms are utilised:-

“LIVES WITH” – which details the person with whom a child/ren is to live;

“SPENDS TIME WITH”  which defines the extent of contact between a child/ren and the other parent;

“SPECIFIC ISSUES”   which sets out various aspects of parental responsibility, such as schooling.

Unless a Court orders otherwise, there is an automatic presumption that both parents equally share parental responsibility for their children until the children reach the age of 18 years.  This parental responsibility remains whether or not either party decides to remarry or have other children.

When parents are able to agree with whom the children live with and also agree when they are to spend with the other parent, we recommend that a written Agreement be signed by the parties and filed with the Court. These Agreements are known as “Consent Orders”. The reason why we recommend parents enter into Consent Orders is that unfortunately sometimes relations between parents deteriorate after separation. Consent Orders provide an enforceable obligation (which is enforceable on both parents) regarding the care of the children.

Occasionally parents need assistance to work out what is the best care regime for their children after separation.  In this instance, mediation is beneficial to bring about a resolution without the intervention of the Court.   Once mediation has been undertaken and a resolution reached, the Agreement can then be documented into Consent Orders.

If parents are unable to agree on parenting matters, then a Judge will make Orders specifying with whom the children are to live with and the time the other parent is to spend with the children.

Where a matter is referred to the Court, a Judge’s first and foremost concern is “what is in the best interests of the child”, not what is in the best interests of Mum or Dad. Therefore, we find that it is much better for parents to enter into an Agreement that they can both live with and operate within the scope of an Agreement instead of a Judge imposing an order on the parties.

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Seeing Your Children This Christmas

Seeing your children this christmas

The festive season should be a time of fun and togetherness. Unfortunately it often turns into a nightmare for parents who are separated especially in regards to spending time with their children.

If you and your ex are in dispute you are often left asking these questions:

• Will I get to see the children during the holidays?
• How long will I have them for?
• Can the children and I have Christmas together?
• Will they be able to spend time with my extended family?

So what are your options:

1. SEE A SOLICITOR

It is advisable to consult a Solicitor at the outset in order to look at your options and be informed of your rights. A solicitor can guide you through the entire process and try to make it as simple and seamless as possible.

2. MEDIATION

The Court encourages parents to try and resolve these issues between themselves. Couples are often required to attend mediation with a positive view to resolving the matter. A genuine attempt needs to be made to deal with any issues.

It is imperative to keep the best interest of the child or children always in the forefront and be able to look past individual grievances so as to reach a solution and resolve issues as swiftly, smoothly and seamlessly as possible.

In many situations a person might be exempt from attending mediation if the matter at hand is urgent, or where a parent is unable to participate due to an incapacity or lack or physical proximity or if there are concerns in regards to the risk of child abuse or family violence, or if there is an alleged contravention of an Order made within the last 12 months.

3. COURTS

If an Agreement cannot be reached or time does not permit, the Court can be approached as a last resort. If however an Agreement is reached your Solicitor can help draft the terms of an agreement in the form of Consent Orders and lodge them on your behalf with the Court.
You do not have to face this stressful time alone. We at McLaughlin & Associates are here to provide you with the help, support and guidance so that you do get to spend time with your children these holidays.

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Children’s Issues

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children issues

As child custody lawyers, today I will talk about children’s issues when couples separate. Since 1996, the Family Law Act was amended whereby the words “custody”, “access” and “guardianship” are no longer used. Court orders in relation to children now include:

Residence – defining the person with whom a child is to live;
Contact – defining the extent of contact between a child and another person;
Specific Issues – defining various aspects of parental responsibility.

Both parents have full responsibility for the children until they reach the age of 18 years unless a Court orders otherwise. This responsibility remains whether or not you decide to remarry or have other children.

If couples agree as to residence and contact I recommend that a written agreement be signed by the parties and filed with the Court. These agreements are known as “Consent Orders”. The reason I recommend this is that unfortunately, sometimes relations between a couple deteriorate after separation and whilst the parties are on good terms these matters should be resolved, especially where the children are young.

If unfortunately, parents can’t agree on matters relating to their children then the matter is referred to the Court and a Judge will make orders specifying with whom the children are to reside and the terms of contact for the non-resident parent.

If the matter is referred to the Court the Judge’s first and foremost concern is “what is in the best interests of the child”, not what is in the best interests of Mum or Dad. What is in the best interests of the child, as regards with whom that child lives with, how often a child has contact (if at all) with the non-resident parent etc.

It is also open to grandparents to make application to the Court for contact with their grandchildren as normally it is in the child’s best interests that they have such contact.

If you need to contact child custody lawyers, please call us on 07 3808 7777 or send us an email.

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