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John Melis
John Melis,
Category: Australia Law
Satisfied Customers: 576
Experience:  Principal Lawyer at Legal AU Pty Ltd
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I am looking for some advice relating to change in custody

Customer Question

Hi there, I am looking for some advice relating to change in custody of children.
JA: What state are you in? It matters because laws vary by location.
Customer: NSW
JA: Has anything been filed or reported?
Customer: There are court orders that were agreed.
JA: Anything else you want the lawyer to know before I connect you?
Customer: My husbands ex partner is moving out of the area. She currently has primary care and my husband around 35% care. The ex wants him to take over primary care, probably in excess of 50/50.
Submitted: 3 months ago.
Category: Australia Law
Expert:  John Melis replied 3 months ago.

Dear customer, my name is***** solicitor, thank you for using Just Answer, I will assist with your question today. Please allow me a few moments to review your post and I will respond accordingly.

Kind regards
John Melis

Expert:  John Melis replied 3 months ago.

Dear customer, the Family Law Act allows for a wide variety of person who may make an application for a parenting order. An application for a parentingorder can be commenced by a person who is concerned with the care, welfare and development of the child. This includes:

  • •the child’s parents;
  • •the child;
  • •a grandparent;
  • •any other person concerned with the care, welfare and development of the child.

A number of provisions in the Act refer only to "parent" or "parents" which has been defined to mean only biological and adopted parents and not a person who stands in loco parentis to a child. Each case will therefore be viewed on its own circumstances and the court will need to consider how Pt VIII would apply to a person who is not a parent.

It is clear that s 65C allows an application to be brought by any person with a legitimate interest in the child’s welfare. This can include, for example, a person who has previously lived with the child as a step-parent. In cases where a natural parent has died, a relative of that deceased parent may make an application in respect of the child.

The best interests of the child are the paramount consideration of the court when making orders in relation to that child. The objects of Pt VIIand the principles underlying it are set out in s 60B(1) and (2) of the Family Law Act.

If a party has a current parenting order and wishes for a variation to be made to that order, they must first prove that there has been a significant change in circumstances since the original order was made to warrant a review.

An application should be made to the court by way of filing an initiating application together with a supporting affidavit.

Whilst there is no binding rule as to what the court must consider when making a decision as to whether a fresh set of orders should be made, the court generally follows a long standing rule set out by Rice & Asplund (1978) on the facts of each particular case.

When determining whether or not to reopen a matter to make new orders, the court is not required to address the factors set out in s 60CC in determining where the best interest of the child might lie. In Carriel & Lendrum (2015) the Full Court did, however say that the court can address the best interests of a child by reference to whether it is in their interest for further litigation.

Parenting orders can be amended, however, the best interest of the child is paramount and the governing decision for the outcome.

Kind regards *****

Customer: replied 3 months ago.
Thanks for that. To be clearer, the ex wants less custody, and for my husband and I to have more so she can move out of the area nearer to her boyfriend. She wants us to take the children on more (currently every other weekend and every other Wed and Mon nights) during the week as we are close to their schools and she doesn't want to move them to where she is moving to. She wants us to have them 4 nights per week and every other weekend. My husband travels quite often so I would be left to manage the children. Can she force him to change the agreement to reflect what she wants? If it went to court what would the likely decision be?I am happy to have them maybe one or two nights per week but not 4. My husbands children (boys aged 10 and 12)are difficult (one is adhd and low spectrum autistic) and they cause a lot of stain on our marriage.. I am scared she can force him to have them more which will make our lives difficult. Happy for 50/50 but no more. The ex chose to become a nurse recently and does shift work so she also wants everything to work around that. She has made a comment in an email that it time for my husband to step up, she has been extremely difficult since his separation from her.Thanks
Expert:  John Melis replied 3 months ago.

Dear customer, as you appreciate parenting is a complex matter, as it always involves the best interest of the child first. In your particular case, I would recommend that amended, or new orders are sought, to provide stability in this situation. Whether the court will accept the changes will depend on how the are presented and supported.

Kind regards *****

Expert:  John Melis replied 3 months ago.

Dear customer, if you would like to discuss this matter further, I welcome you to request telephone services.

Kind regards

John Melis