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The Kids

Can I change my child’s surname?

To formally change a child’s name, you must apply to the NSW Registry of Births, Deaths and Marriages for registration of a name change. Children aged 12 years and over must consent to their change of name.

The consent of both parents is required or if this is not possible, a court order. Either parent can apply to the Court for an order seeking permission to change the name (if the other parent won’t agree) or stop (restrain) a parent from using a different name for a child.

The Court will make its decision based on what is best for the kids.

A child cannot change their name on their birth certificate themselves until they are 18 years old in NSW.

Custody: Does my child get to decide?

There is a strong preference in Australia for parents to reach an agreement regarding custody without resorting to litigation. In the hope of achieving this goal, parents are required to attend dispute resolution and make an effort to resolve any custody issues on their own.

If you are able to finalise custody through a parenting order or parenting plan, without going through litigation, your child’s wishes should certainly be a factor in how you determine custody. The guiding light when it comes to children’s issues is that you (and the court) should act in the best interest of the child. If your child voices a preference to spend more time with one parent, or there is a clear bond between the child and one parent, this should certainly be considered while you work out custody issues.

Both parents should work to reach an agreement that suits the needs of the child, and considering the child’s wishes is often the best way to determine what the best interests of the child are.
What if you aren’t able to reach an amicable custody arrangement and you require the court to determine custody? Will the court entertain your child’s preference to live with one parent over the other?

The answer is yes. The court must consider the views of the child in determining the child’s best interest. While it is not a requirement for a child to disclose his or her wishes, should they choose to express them, the court must consider them. However, simply because the child voices a preference for one parent, does not mean that parent will automatically be given preference in the custody dispute. The court will balance the child’s wishes along with their credibility. A child’s age and maturity are relevant factors in determining credibility.

So whether you plan to reach an amicable agreement with your ex-spouse, or if you must resort to litigation to decide a custody arrangement, the child’s wishes are of the utmost importance. Considering the child’s views is a necessary step in determining the best interest of the child.

What is an Independent Children’s Lawyer?

Sometimes the Court may request that an independent children’s lawyer be appointed to form an independent view of the evidence and act in the best interests of the child. This lawyer may interview the child without the parents being present, contact schools and health professionals of the child or parents and make sure certain documents and reports are provided to the Court. They may ask for a court expert to be appointed if they believe it is necessary to assist the Court reach a decision about with whom the children should live and spend time with.

I have an order for the children to spend time with me but my ex-partner won’t let me see them. What can I do?

If the other parent is in breach of an order affecting your children, you can either:
  • try to resolve the conflict through counselling or mediation services
    OR
  • you can apply to the Court alleging the other party has contravened (broken) the parenting order.
The Court takes breaches of its orders very seriously. Depending on the circumstances, the non-complying parent can be referred to a parenting program, fined, made to provide compensatory (or “catch up” time) with the child and parent, or even face jail. When a breach occurs, the non-complying parent may show a reasonable excuse. For example, a very sick child (supported by proper medical evidence) may be considered a legitimate reason for a parent breaching an order.

If the orders breached are no longer workable, the Court may order that both parents attend a parenting program, or adjourn the case to consider varying the orders.

The other parent has taken the children and is refusing to return them. What should I do?

If you have an order that the children live with you or spend time with you and the children have been taken or not returned, you need to apply to the Court for a recovery order. This order allows the police (both state and federal) to find and return your children to you.

If you do not have an order that the children live with or spend time with you, you need to apply to the Court for such an order, as well as a recovery order. This can be done simultaneously.
Sometimes in an emergency the Court may give these orders ex parte, that is without the other parent being at court. If you are worried that the children might be taken out of Australia you should put the children’s names on the Airport Watch List. You will need to apply to the Court to place the children on the Watch List and send a copy of the application and any court orders made to the Federal Police.

If you find yourself in this situation you should phone the Federal Police and find out what they require.

What happens if we go to Court?

The Court will usually appoint a family consultant to assist and advise parties.

The Court must consider the needs of the child and the impact of the proceedings on the child. The Court must conduct the proceedings so that the child is safeguarded from family violence and abuse. The proceedings should intend to promote cooperative and child focused parenting and should avoid delay and formality.
 

How do I get a passport for my children?

Unless exceptional circumstances exist, both parents’ consent is required to obtain a passport for your children. If one parent refuses to consent, then you will need to obtain orders from the Court for a passport to be issued, and permitting the children to travel without the consent of the other parent.

If you take the children out of Australia without permission and there are court proceedings or orders, you could be committing a criminal offence

Regardless of whether any court orders are in place, Australia has an agreement with many countries (the Hague Convention) which requires these countries to send the children back.

Moving

The children have been living with me since separation and I want to move out of the local area. Can I just go with the children or do I need the other parent’s permission?

The Family Law Act states that children have a right to know and to be cared for by both parents. However when a parent needs to move away and that move may affect the children’s ability to spend time with and communicate with the other parent on a regular basis, a number of factors need to be considered:
 
  1. When there are court orders about the child - you will need to look at the court order to see whether the move will breach the order. For example, if the order says your children are to spend time each weekend with the other parent and you plan to move from Sydney to the Gold Coast, you would probably be in breach if you moved. You would then need to have the orders varied either with the other parent’s consent or by the Court before you move.
  2. When there are no court orders about the child - you will not be breaching any orders by moving. However, if there is an informal agreement or parenting plan for your children to spend time with the other parent, then the other parent can ask the Court for an order which stops you from leaving the area with the children. Above all, the Court will look at what is in the best interests of the child.

Can court orders help grandparents see their grandchildren?

Grandparents (or with an ongoing relationship with the children) can apply for an order to spend time with them.

As long as it is in their best interest, children have a right to spend time with significant people in their lives.

Grandparents must show that an order to spend time with the children is in the best interests of the children. They also may need to attend family dispute resolution before they can apply to the Court.

Can I seek custody of my grandchild?

While there is no inherent right for grandparents to spend time with or care for their grandchildren, the Family Law Act does provide some protection for grandparents. When it comes to settling custody disputes, the court is always going to act with the best interest of the child at heart. Sometimes, this will require removing a child from the care and custody of a parent and placing that child with a grandparent. Although rare, circumstances do exist which warrant this type of action.

There are two ways in which a grandparent may seek a parenting order. The first is by making an application to communicate with and spend time with their grandchild. This type of application may be appropriate where a parent has chosen to sever the relationship with the grandparent, and is not allowing the grandparent to spend meaningful time with the grandchild. A grandparent may make this application regardless of whether the parents are separated or not.

The second action available to grandparents is to apply for an order seeking parental responsibility for the child. This action will only be appropriate in extreme circumstances, where both parents have proven they are unfit or unwilling to care for the child.

Grandparents who are concerned about visitation rights may rest assured that they are permitted to take action seeking visitation, and sometimes-even custody, of their grandchildren.  The guiding principle in custody actions is ‘what is in the best interest of the child,’ and the relationship between a child and their grandparent will certainly be considered. If the grandparents had historically been present and involved in the child’s life the court will be inclined to allow the grandparent to continue this relationship despite the breakdown of the parent’s relationship and their subsequent refusal to let the child spend time with the grandparent.

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