COMMON CHILD CUSTODY MYTHS – PART II
Anyone who can’t Afford a Lawyer Can Get Legal Aid
NOT TRUE – Legal aid funding is only granted for cases that Legal Aid considers have reasonable prospects of success. Other requirements include that the case involve a substantial dispute (and not just something trivial), and that it is in the public interest for Legal Aid to fund the case. So if a parent is seeking an unreasonable outcome, Legal Aid will not grant funding.
Sometimes a parties’ prospects of success might change halfway through Court proceedings because of some event that occurs after proceedings are started. For instance, a party might start off with good prospects of obtaining the Orders they want, and then have slim prospects of obtaining the Orders they want because of some fresh evidence. Occasionally, when that happens, Legal Aid itself doesn’t find out about the changed prospects. In those circumstances, the opposing party should consider sending a written ‘complaint’ to Legal Aid to notify it of the changed prospects of success. If Legal Aid agrees that a party no longer has reasonable prospects of success, it will cut their funding. You might be surprised at how willing Legal Aid is to cut funding, and if funding is cut, how quickly the matter will then settle by consent.
Both Parents must Consent to a Child Travelling Interstate or Moving Town
NOT ENTIRELY TRUE – There is no law which prohibits parents from taking children interstate, or moving children to another town without the other parents’ consent, so taking such action is not technically ‘illegal’ or ‘unlawful’. Nonetheless, if the non-travelling/non-moving parent takes issue with the travel or relocation, they are entitled to apply to the Family Law Courts to seek Orders that the children be returned to the town they originally lived in (and that the Australian Federal Police assist with recovering the children if necessary). This is often referred to as a “Recovery Order”.
There’s No Consequences for Litigants who Fabricate False Allegations
OFTEN NOT TRUE – If a parent in child custody proceedings fabricates allegations, the fabrication itself is a factor relevant to the Court’s decision of what Orders are in the children’s best interests. This is especially the case if the fabrication can be deemed to have been made with the intention of making it more difficult for a parent to have a relationship with a child. It is even possible for children to be removed from the care of a parent who continually makes false allegations against another parent, because the making of the allegations may be damaging to the children.
Parents who have fabricated false allegations also run the risk of having Orders made against them that they pay all, or part of the other parents’ legal fees associated with the matter.
Parenting Orders aren’t worth the paper they’re Written On
IT’S A MATTER OF OPINION – Parenting Orders are legally binding. If they are breached, the non-breaching party can inform the Court of the breach via a ‘Contravention Application’. If the Court is convinced the breach actually occurred, the Court may impose penalties, including fines, community service and imprisonment. The Court may also vary the Parenting Order. In fact, Courts may even remove children from primary carers who have repeatedly breached a Parenting Order.
And no, you don’t have to have a lawyer to file a Contravention Application, but if you do use one, and the Application is successful, it is highly likely that the Court will Order the breaching party to pay all or part of any legal fees you’ve had to pay for the Contravention Application.
This article was written by Townsville Family Lawyer, Kyle Barram on 23 June 2016.