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The Law and You: Before you go to Court about your children

Watts McCray Lawyers

Concerned that the arrangements your partner proposes aren’t in the best interests of your child or children? If so, Watts McCray advises you not to make rash decisions or think you can solve the matter by heading straight to Court.

First, going to Court is expensive. Second, the law won’t let you go straight to Court, unless there is a risk to a child’s safety or of the child being removed without your permission. For the majority of people, going to Court is a last resort.

You first need to try to mediate child arrangements with your partner. If this doesn’t work you can have the Court determine the best care arrangements, but you need to include a Section 60I Certificate with your application. This Certificate is described later in this column.

My partner is difficult. Can I just go straight to Court? 

No you can’t. The Court will not hear cases on child arrangements without you and your partner attempting to sort things out in the best interests of the children through mediation.

The best first step is to seek legal advice on your options, from a law firm specialising in family law. Your lawyer can help you understand your legal rights and responsibilities, and explain how the law applies to your case.

Your lawyer can also help you reach agreement with your partner without going to Court, including by referring you to experts in mediation. Your lawyer can then formalise any agreement you and your partner reach about the care of your children.

If you can’t reach agreement, your lawyer can explain your chances of success if you end up in Court and guide you through Court.

Who should I go to for mediation?

One option is to go to organisations such as Relationships Australia or Conflict Resolution Services. These organisations provide mediation services and can help you try to come to an arrangement that is in the best interests of your children. If mediation doesn’t work, these organisations are authorised to issue the Section 60I Certificate you need when you apply to go to Court.

Another option is for you and/or your partner to consult a child and family psychologist for expert advice on child arrangement options. This gives you the opportunity to learn from and talk to someone who is across social research on child arrangements. This information, especially with young children and young babies, can help your understanding. Watts McCray can refer you to such experts.

Check if the psychologist you’ll see is a registered family dispute resolution practitioner (not all psychologists are). If they are, they can issue the Section 60I Certificate you need when you apply to go to Court. If they aren’t registered, talk to your lawyer.

Do I have to attend mediation or are there exceptions to doing so?

There are exceptions because the Court recognises that it’s not always appropriate for parties to attend mediation. Exceptions include when:

  1. the case is urgent—for example if your partner moves interstate or overseas with your children without your permission or if you need to obtain an Order to place your children on the airport watch list
  2. there are allegations of child abuse or risk of abuse
  3. there are allegations of family violence or risk of family violence
  4. one party refuses to engage in mediation or negotiate after being invited to attend a mediation session.

Can my lawyer issue a Section 60I Certificate?

No. Your lawyer is there to promote your interests. So even if they are a registered family dispute resolution practitioner, it is a conflict of interest for your lawyer to conduct a mediation between you and your partner and/or issue you with the Section 60I Certificate.   But your lawyer can certainly make contact with the other parent and try to resolve the issue without the need for Court or further mediation.

The purpose of seeing a separate family dispute resolution practitioner is to have a neutral party try to get both parties to discuss matters and strike an agreed arrangement that is in the best interests of your children.

Tip

The most important thing the Court considers when resolving disputes such as these, is the best interests of the children. You and your partner must also use this principle when discussing child arrangements, including with your lawyer and in mediation.

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Watts McCray Lawyers

Watts McCray is a leading firm of family and relationship lawyers. We have the largest number of accredited family law specialists in Australia and are backed by years of experience. Our lawyers have the skills to provide you with sound, practical advice about issues such as relationship changes and separation, property and financial matters, parenting arrangements after separation, child support and divorce. Watts McCray can also provide you with legal help if you want to resolve matters without having to go through Court. We can help with negotiation, mediation, collaboration and arbitration services as well as the traditional Court litigation process. We can also help with your estate planning and wills. Call us on (02) 6257 6347 for more information and for tailored services to meet your specific legal needs. More about the Author

  • Libby

    Souch of this angst would be curtailed if only parents stopped seeing children as possessions and a way of hurting another partner. It is so sad that so many mums do this and so many Dads are left with crumbs when it comes to spending time with their children… And yes I do know it happens both ways… And yes I have been a single parent and raised children to adults mainly on my own. Whst I learnt is that children NEED a healthy quality relationship with both parents ( unless there is abuse of some sort) to thrive and be whole. Parents wake up.. You do not OWN your children, they are not a bargaining tool to be used to hurt an ex partner! They are beautiful, individual , wonderful human beings whose rights to know and love both parents( and that includes grandparents, aunts, uncles etc of both families) are paramount. Please swallow your pride, forgive bad behavior, and let your little ones have the best of both parents. Just saying..

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