It is compulsory for parents to attempt to resolve parenting disputes through mediation before commencing proceedings through the Court, unless:
• there has been child abuse or a risk of child abuse;
• there has been or is a risk of family violence;
• urgency; or
• one or more of the parties are unable to attend mediation due to incapacity, for example, physical remoteness.
Should you end up in the Court system, the Court will take the decision making out of the parents’ hands in respect to what is in the best interests of the child. There are a number of factors a Court takes into consideration when determining this. The primary consideration is the need for the child to maintain a meaningful relationship with both parents while being protected from physical or psychological harm, from exposure to abuse, neglect or family violence.
At times the Court will require assistance in determining the best interests of the child. A Judge is not an expert in parenting and will rely upon various experts to assist, such as Family Consultants employed by the Court; Child Psychologists and Social Workers in private practice who are commissioned to prepare a Family Report; or Psychiatrists (in some cases).
If necessary, the Court may order the appointment of an Independent Children’s Lawyer to represent the child’s interests. An Independent Children’s Lawyer does not represent the child, but instead is appointed to gather evidence regarding the best interests of the child to assist the Court with making a decision.
The Court may ask for a family report to be prepared to give the parties some clarity in respect to the best interests of the children. Parents are often of the mindset that their own parenting skills are in the best interests of the children. A family report is often required prior to final parenting orders being made.
It is important to remember that it is child who has the right to know and be cared for by both parents. The child has a right to spend time and communicate with both parents on a regular basis. In the process of a parenting dispute, parents often forget that the child’s best interests are the most important factor. It is important to put aside your personal feelings about the other parent and focus on the child. Make an effort to sort things out together rather than going to Court.