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Family Law Act places requirements upon persons not to interfere with or hinder a person in carrying out their obligations under parenting orders. A non-complying party can be the subject of a contravention application. A contravention application is a distinct, technical application, where the court considers whether a party has contravened an order, and if so, what penalty if any is appropriate to impose on that parent. The purpose of a contravention application is to determine whether a party is guilty of not complying with a court order. Due to the technical and complex nature of the contravention application, please contact our office to discuss your situation.

An independent children’s lawyer (ICL) represents your child’s best interests and makes sure that is the focus of any decisions about parenting arrangements. The Court can appoint an ICL under s.68L of the Family Law Act 1975, or on the application of a child, an organisation concerned with the welfare of children or any other person, to represent and promote the best interests of a child in family law proceedings. An ICL is usually appointed by the court upon application by one of the parties where one or more of the following circumstances exist: there are allegations of abuse or neglect in relation to the children there is a high level of conflict and dispute between the parents there are allegations made as to the views of the children and the children are of a mature age to express their views there are allegations of family violence serious mental health issues exist in relation to one or both of the parents or children, and/or there are difficult and complex issues involved in the matter. WHAT IS THE ROLE OF AN ICL? ICL’s are obliged to consider the views of the child, but ultimately provide their own, independent perspective about what arrangements or decisions are in the child’s best interests. Their main roles include: arranging for necessary evidence, including expert evidence, to be obtained and put before the court facilitating the participation of the child in the proceedings in a manner which reflects the age and maturity of the child and the nature of the case acting as an honest broker between the child and the parents and facilitating settlement negotiations where appropriate WHAT INFORMATION DOES AN ICL CONSIDER TO DETERMINE WHAT IS IN THE CHILDREN’S BEST INTERESTS? The ICL may meet with the children. This is usually the case, unless the child is under school age, or there are exceptional circumstances, speak to the children’s counsellors, school teachers and principals, examine documents from organisations such as schools, Department of Family and Community Services, the Police, and medical, psychiatric and psychological records of the children and their parents; question witnesses, including parents and experts.

Family Law Act provides the court with a wide discretion as to the manner in which the proceedings are to be conducted and power to conduct the proceedings as an inquiry. Family Law Act sets out 5 principles for conducting child-related proceedings: The needs of the child and the impact of the proceedings on the child must be considered. The court is to actively direct, control and manage the conduct of the proceedings. The proceedings are to be conducted in a way that will safeguard the child from family violence, child abuse and child neglect; and the parties from family violence. As far as possible the proceedings are to be conducted in a way that will promote cooperative and child-focussed parenting by the parties. The proceedings are to be conducted without undue delay and with as little formality and legal technicality and form as possible. The principles underpin the court’s wide discretion to conduct the proceedings as it sees fit to bring about a result that is in the child’s best interests.

The court’s paramount concern in making parenting orders is the best interests of the child. In determining what is in the best interests of the child, the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents: has taken, or failed to take, the opportunity: to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; to communicate with the child; and has facilitated, or failed to facilitate, the other parent: participating in making decisions about major long-term issues in relation to the child; and spending time with the child; and communicating with the child; and has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child. Where the child’s parents have separated, the court must, in applying subsection 60CC(3), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.

Except when filing consent orders, the parties must, before filing any other application for parenting orders, file a s 60I family dispute resolution certificate with their application subject to certain exception. Please contact our office to discuss your situation and if you are required to obtain the certificate before initiating the proceedings.