Child custody orders and what the court considers

Child Custody Orders (Parenting Orders) – Views of the children in relation to a decision concerning who they live with after separation of the parents.

Have you recently separated or considering separation from your partner? Do you have a child or children who are expressing a view following separation of where they want to live? Are you wondering what impact the child’s wishes may have when a Court determines what will be the children’s living arrangements following separation?

There are many factors a Judge will consider when making an order regarding the living and care arrangements for children. The paramount consideration for the Court is what is in the best interests of the children when considering parenting orders to be made.  The factors that the Court takes into consideration are detailed in the Family Law Act 1975 and various cases that have appeared before the Court which are used to guide a Judge in making a decision. One such factor is “any views expressed by the child”.

contact our Child Custody Lawyers Brisbane or North Brisbane Child Custody Lawyers at LGM Family Law  if you would like to receive advice about child custody orders (parenting orders) specific to your circumstances. You are also most welcome to continue reading……

In a recent case before the Federal Circuit Court of Australia at Sydney, Valentino & Anor & Valentino [2018] FCCA 2439 , Judge Altobelli gave the child’s wishes a significant weighting when determining the Child Custody Orders to be made.

Generally, if parents cannot agree on the living arrangements for their child, in making an Application to the Court, the Applicant parent is asking the Court to make that decision for them.  A Judge will firstly consider:

  1. the benefit to the children in having a meaningful relationship with both parents; and
  2. any risk of the children being exposed to harm, abuse or violence by a parent.

In the event there is any risk of harm to the child in either parent’s care, the need to protect that child from harm will outweigh the benefit of the child’s relationship with that parent.

Other factors to be considered include any expressed views of the children, the nature of the child’s relationship with their parents and the effect of any change in circumstances upon the child.

In Valentino’s case referred to above there were 3 children of the relationship. The parents were able to make an agreement in relation to the two younger children aged 10 and 7. However, the older child who was 15 years of age was expressing strong views of her own and the parents were not able to agree.

From the outset, the Judge acknowledged the difficulty of determining the child custody orders referring to the very intense conflict between each parent and the paternal grandmother. An Independent Children’s Lawyer (ICL) had been appointed to represent the children. The Father, Paternal Grandmother and ICL were seeking Orders that the 15-year-old child be able to choose where she lived between the Father, Mother or Paternal Grandmother. The Mother was seeking an Order that the 15 year old child be able to choose where she lived between the Mother or Father.

After multiple consultations with a Court Appointed expert, an extensive report was placed before the Court for consideration. In consultations with the Court appointed expert the child had stated that “I want to choose who I want to live with… and be happy with”. The Expert and Judge noted that she was clearly able to articulate the benefits, and supports, available to her where she is with her Paternal Grandmother.

The Judge when considering the child custody orders to be made took into account the risks of harm to the children and noted that whilst there had been issues in the past, that risk had now passed. The Judge further noted that a child’s views are but one factor that needs to be taken into account in working out what is in their best interests and referring to a judgement in the High Court on the topic Bondelmonte v Bondelmonte [2017] HCA 8.

He then went on to make very thorough Orders that he considered would be least likely to lead to the institution of further proceedings in the future. Those orders provided that the 15-year-old child was able to choose which parent or Grandparent she wished to live with and how much time she wished to spend with any other party.

Contact our Child Custody Lawyers Brisbane or North Brisbane Child Custody Lawyers. We can assist you if you have concerns regarding any parenting or property related issues, including assisting you to obtain Child Custody Orders. We offer a free initial phone consultation where you can speak with one of our experienced Brisbane child custody lawyers. We also provide a fixed price initial consultation and can provide fixed price family law fees dependent upon your circumstances.

Kindly note that this blog contains information only and does not constitute legal advice to you. You will need to obtain specific legal advice tailored to your particular circumstances. Our experienced family lawyers Brisbane CBD, North Brisbane family lawyers and Brisbane child custody lawyers are ready to assist you to resolve your particular family law matter.