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Children & Family Law

Child Custody and Care Disputes

Child custody disputes in the Family Court would have to be one of life’s most stressful experiences. That’s because the day-to-day care arrangements for children are ultimately decided by the magistrate and not by the parents. The process also tends to dredge up and publicize painful and private memories. 

For these reasons and many more it is preferable for parties to come to an agreement in the mediation process. If both mum and dad can agree on a care arrangement for the children, then there is an agreement about a future where the best interests of the children are served. Coming to an agreement out of the Court process gives you the best chance of being able to effectively co-parent for the good of your children.

Prior to attending mediation, or racing off to the Family Court to start litigation, it is a good idea to obtain legal advice from an experienced Family lawyer. At Carter Dickens Lawyers, we can assist with all aspects of child custody disputes from initial advice, to effective negotiation practices, and if need be, with Family Court litigation.

While settling out of court is the ideal outcome, there are many reasons why mediation can not succeed. If one party is being entirely unreasonable, or has a history of abusive and neglectful behaviour, or is simply being dishonest, then you may be forced to seek the assistance of the Family Court to resolve the conflict.

The simplest child custody cases in the Family Court involve two capable parents who disagree about how much time the children should spend with each parent. An example may be a father who seeks an equal time arrangement, while the mother believes that the children should be primarily in her care. In order to determine what care arrangements are put in place, the court is required to take into account all of the factors set out in the legislation and the evidence provided by the parties.  

Matters are made more complicated when the parties make allegations of behaviours that may put the children at physical or psychological risk. This may include illicit drug use, family and domestic violence, verbal and psychological abuse, neglect, and even toxic parenting practices such as causing parental alienation. It is often the case that such behaviour is denied. If this happens, one of the parties must be lying to the court, and the court will be required to make findings of fact. In other words, the court will need to decide who to believe. 

As Magistrates’ are not mind-readers, or human lie detectors, it is important to have your evidence presented effectively so that the totality of your evidence is honest, cohesive and believable. For example, even if you totally loathe your ex-partner, making some truthful, positive comments in your affidavit about them can show the court that you are honest and fair because you are willing to provide balanced evidence of the positive and the negative aspects of your ex-partner.

It is also important to ensure that you do not create harmful evidence in the course of the proceedings. For example, sending your ex-partner an angry SMS because they returned the children to your care an hour late can be used as evidence that you are angry and unwilling to act maturely to cooperate for the benefit of the children. On the other hand, consistently sending your ex-partner kind and helpful communication can be adduced into evidence to show the court that you can co-parent effectively and that you are a reasonable and mature parent.

In addition to your own evidence, it may be a good idea to engage a child psychologist to provide expert evidence on what they consider to be best for the children. This can be very helpful as unlike the Magistrate, the expert witness will be able to speak to all the parties, including the children, and review all documents such as court documents and medical records before they provide their opinion. Furthermore, such an expert will have the qualifications and expertise to suggest a sensible and child focused care arrangement.

A good Family lawyer will assist you with all of this. They will advise you to make sure your expectations are reasonable so that you are not wasting your resources and your time. They will help you gather and present your evidence. They will know the relevant law and help you strategize and negotiate. They will vigorously argue on your behalf in mediations and court proceedings. They will bear a large portion of the stress for you while you are permitted to remain silent as they fight the verbal battles for you. 

All parents know that they have a duty to do what is right for their children. Following a separation where an ex-partner is behaving terribly towards you or your children, it can be very difficult to know what to do. Given the importance of our children, it makes sense to seek out a lawyer to assist you to get the right outcome for your children. However, legal fees, especially in long drawn-out Family Court disputes can become overwhelming. 

At Carter Dickens Lawyers, we can help you achieve your legal goals within your budget. We can make sure that all of your fees are a sensible investment in achieving your goals. Even if you only have a meeting with us every now and then, we can assist you with advice about what you should be doing as a self-represented litigant so that you are guided through the minefield of Family Court procedure, law and regulations. Conversely, we can take on the burden for you. You may instruct us to draft all documents and fight your case on your behalf so you don’t have to.

Please contact our office to arrange an appointment and we will be glad to assist.