Child Custody Lawyers Melbourne

No, you do not need to go to court to arrange a child custody agreement or for any type of parenting matter to be resolved, unless there is a serious conflict, complex factors or one (or both) parties are making the process of resolution more difficult. Almost all parenting matters can be organised through private arrangement by parents, or with the help of a family lawyer, in mediation or Family Dispute Resolution. You can either make an informal agreement, a parenting plan or a legally binding ‘Consent Order’ which is lodged with the Federal Circuit and Family Court of Australia for review and approval.

If you are unable to reach an agreement after attempting out of court processes, you can make an application to the court for parenting orders. Before you do this, you will need to attend FDR, or attempt to do so, unless an exemption applies such as a child at risk, family violence or urgency. If FDR is attempted and unsuccessful, or deemed unsuitable, a 60I certificate may be issued to commence court proceedings.

A parenting order is a family law court order made by the Federal Circuit and Family Court of Australia that parents (or other caregivers named on the order) are legally required to follow. They have the same effect as Consent Orders, but are decided by a judge or registrar in court when parents are not able to reach an agreement on their own. These orders can decide allocation of time with each parent, decision- making responsibilities and parental responsibility, and any other aspects of the care of the child or children concerned, as outlined in section 64B of the Family Law Act 1975 (Cth). It’s important to be aware that recent family law amendments have shifted the way parental responsibility is considered when making orders.

Each parent has parental responsibility, which is outlined in section 61B of the Act, from the time their child is born. The courts have always been able to grant sole parental responsibility (not care or ‘custody, but responsibility and decision-making) to one parent when necessary, but they presumed equal shared parental responsibility when making orders before the amendments came into effect in May 2024. The courts have removed the presumption of equal shared parental responsibility when making orders, and will look at what is in the best interests of the child before making a decision.

This now means that each parent automatically has parental responsibility, unless a court order states otherwise, in line with section 61C of the Act. Most child custody disputes are solved without the need to go to court, or trial, for a parenting order. Parents involved in the court system also have the option to reach an agreement at any time during the proceedings.

If you suspect parental alienation is occurring in your co-parenting dynamic, which is when one parent subtly or less subtly attempts to manipulate a child’s opinion of the other parent, you should document any concerning behaviors, maintain a consistent relationship with the child where possible and avoid retaliatory actions or similar behaviour. It can be very distressing for both the affected parent and children concerned, and it may be worth considering professional support for the emotional impacts where possible.

While the courts don’t officially recognise parental alienation, they do see and recognise the many behaviours linked with it. It can be hard to prove as it can gradually progress, and the other parent may make false accusations or even tell children false or misleading information. Seeking legal advice is crucial, as there are interventions available.

Persistent conflict between parents can negatively impact children, and parents as well. There are a number of legal and other options that may be suitable for your family. Using FDR or mediation can help to set guidelines or boundaries. Consent or parenting orders can clearly detail things like non-denigration of the other parent (not speaking badly about them), and clearly define things like changeovers and holidays so there are less sources of conflict. Some people find support through counseling, seeing a psychologist or family therapy.

There are also a number of co-parenting courses and other resources that parents can willingly choose to do, or may be court ordered. If the conflicts are ongoing or one-sided, or related to a wider dynamic of family violence, other specialised support or court proceedings may be required to resolve them. Using a Parenting Coordinator is another option that is growing in Australia. A Parenting Coordinator is a specially trained lawyer who helps parents communicate effectively and resolve disputes without returning to court. They may be engaged privately or through court order.

The court decides on parenting arrangements based on what is in the best interests of a child, which are outlined in section 60CC of the Family Law Act 1975 (Cth), with their safety being a key factor of consideration. The courts will look at the child’s views, needs and relationships, and each parent's capacity to meet their child’s needs. In most cases, contact with both parents is maintained, even if one parent has more time with the child. If a matter does go to court, an Independent Children’s Lawyer may be appointed to represent the child, and present the views and voice of the child.

No they do not. The court looks at both parents' capacity to meet their child’s needs, regardless of the gender of the parent. Parenting decisions are based on what is best for the child and the circumstances of the individual family. Fathers have the same legal standing as mothers when parenting matters are determined by the court.

There is no age that a child can unilaterally decide to live with a parent in Australia. It should be up to both parents (if they are both present in the child’s life) to work together to create parenting arrangements that are best for their child, or children.

Many children may express wishes of this sort during the co-parenting journey, and often it’s not over huge things, but it can be hurtful to the parent who feels ‘left out’.

They may love their pillow at one house, or have a new puppy to play with. One parent may make better meals, the other may take them out more often. Or they may not like their new step-sibling, or prefer the trampoline at one place. In most of these cases, it’s worth discussing with your child why. In some cases, there are real reasons a child prefers to be in one home, and while their voice is considered in any proceedings, it’s up to the parents or the court to decide where their child lives.

The cost of legal support depends on the nature of the matter, work required and how easily an agreement can be reached. If court proceedings are required, costs tend to escalate. At Testart Family Lawyers, we offer a free introductory session to discuss your circumstances, assess your legal position and explain your available options. We aim to provide honest, realistic advice about your matter and the likely legal costs from the outset.

Testart Family Lawyers are based in Toorak and assist clients with parenting and child custody matters across Melbourne suburbs and greater metropolitan Melbourne. We service many clients across Kew, Hawthorn, Balwyn, Bentleigh, Camberwell and Malvern, and other nearby areas. If you are dealing with a parenting dispute or need help with early parenting arrangements, get in touch with our child custody lawyers to discuss your circumstances and how we can help.