Where a settlement cannot be reached by negotiation or mediation (family dispute resolution) then court proceedings can be commenced and the Court will make a decision at a trial, based upon the evidence presented and the Court will consider the following: —
a. the best interests of the child as the paramount consideration;
b. ensure that the best interests of a child is met by both parents having a meaningful involvement in their child’s life; that the child is protected from physical or psychological harm; that he or she receives adequate and proper parenting; and the parents fulfil their duties and meet their parental responsibilities;
c. determining what is in a child’s best interests the court must consider the matters set out in s.60CC of the Family Law Act 1975;
d. applying the presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility, however, this presumption may not apply or may be rebutted in cases of child abuse and/or family violence or when the evidence establishes that it is not in the child’s best interests for it to apply;
e. if the Court orders the parties to have equal shared parental responsibility the Court must apply the provisions of s.65DAA of the Family Law Act 1975 which provide for a consideration of the child spending equal time with the parents. If the court finds that is not in the child’s best interests or reasonably practicable then the Court must consider the child spending substantial and significant time with the parents.
The steps generally involved with the court proceedings are: –
preparation of the relevant court documents which detail the parenting arrangements proposed then filing of those documents in the Court at which time a 1st court date will be allocated;
service of the court documents on the other party;
if the other party objects to your parenting arrangements set out in the court documents then the other party must file documents in the Court in response (or if the other party agrees to the parenting arrangements then documents can be signed to consent to court orders being made to finalise the matter);
an interim hearing is held by the Judge on the 1st court date to make urgent court orders for the parenting arrangements which will operate pending further investigation of the case being made (however if the other party agrees to your parenting arrangements then a court order will be made by consent at that time );
As part of the court proceedings the Court may appoint an Independent Children’s Lawyer to represent the best interests of the child independently of both parents or may require a family report to be prepared by a social scientist to provide the Court with expert opinion as to the parenting arrangements that should be considered in the best interests of the child.
further investigations may be conducted which could include subpoena of documents such as medical records, etc;
if following these further investigations the matter cannot be resolved by agreement between the parents then the Judge will list the matter for a trial at which the evidence of the parents and other witnesses will be given to the Court and each witness will be cross-examined and then the Judge will make a final determination of the parenting arrangements.