Children Custody Matters
Children custody/parental responsibility matters:
The wellbeing of your children should be your primary concern. Matters relating to children are dealt with under the Family Law Act 1975 (Cth) and are heard in the Federal Circuit Court, Family Court or the Local Court. The courts cover matters relating to the residence of your children, custody (parental responsibility), relocation, ongoing financial assistance for your children etc.
Whether you are married or in a de facto relationship, both parties must undertake “pre-action procedures”. More information on pre-action procedures can be found on the Federal Circuit Court of Australia website, however, include both parties participating in dispute resolution. In order to file an application in court, the court will require a certificate namely, Section 60I certificate. Pre-action procedures is a requirement unless there has been family violence, child abuse or urgency.
Pre-action procedures –
It is a requirement that you and the other party comply with the pre-action procedures which involves an attempt to resolve your dispute about your parenting matters using family dispute resolution prior to commencing any parenting proceedings.
Exemptions:
There are exemptions to the pre-action procedures. The exemptions are where there is urgency, allegations of child abuse or risk, allegations of family violence, where one party refuses to negotiate or where a person would be unduly prejudiced or adversely affected.
Section 60I certificate:
When filing court documents, you must file with your application a certificate obtained from a family dispute resolution practitioner in accordance with section 60I(6)-(12). The certificate outlines what has happened for example, whether you and your spouse attending dispute resolution, whether the practitioner considered it appropriate/inappropriate to conduct, whether you and your spouse engaged in the dispute resolution and made a genuine effort to resolve the dispute, whether the dispute resolution was discontinued or whether results were achieved.
Notice of intention to claim:
Further to attending family dispute resolution, you must provide a ‘notice of intention to claim’. What this is, is a notice to the other party setting out the issues in dispute, the orders which you would seek, a genuine offer to settle and state a reasonable time for them to respond. For example, you might outline when you wish to see, spend time with or speak to the children, whether overnight stay will be agreed upon, whether you wish to discuss the current financial assistance as well as providing the other party with a notice of intention to claim.
If the other party fails to respond to the notice of intention or unless agreement between you is not reached, then you can commence proceedings.
Disclose and exchange:
You are also required to exchange copies of relevant documents and make full and frank disclosure. The Duty of Disclosure can be found at here
Objectives:
The objective of the pre-action procedure is to encourage early and full disclosure, to help you and the other party resolve your differences quickly and fairly and to avoid court action which would reduce costs and to encourage you and the other party to seek only those orders that are realistic and reasonable. You need to also ensure that the best interests of your child/ren are the primary consideration when doing so. You must consider the need to protect the child/ren, the importance of the relationship with both of you, the importance of identifying issues, the impact of correspondence etc.
If an agreement is reached, you and the other party can enter a parenting plan or apply to the court for consent orders.
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