The Ugly Truth About Child Custody Dispute Resolution Finally Revealed

Child custody disputes fall under the Family Dispute Resolution umbrella (FDR) in Australian law. Family dispute resolution involves a host of services offered by legal entities and other organisations, which are designed towards helping separated couples resolve issues affecting them and their families. This section will uncover the truths behind the process of resolving child custody disputes.

It Starts With Mediation

Conflicts involving child custody are often addressed under mediation, which is a form of alternative dispute resolution. Mediation is a voluntary process, but it is often required before your custody case is resolved in a family court in Australia. In fact, you can only file a case with the family law court after you receive a certificate that states you made a genuine effort towards resolving the custody dispute, but you were unable to arrive at a resolution with your partner. Certain exceptions to this requirement do occur, such as the risk of family violence, geographical challenges or if the matter is urgent.

During the mediation process, a neutral third party with knowledge of the law helps the conflicting parents arrive at an agreement regarding custody of the children.

The Mediator’s Role

During dispute resolution, the mediator plays several important roles towards helping both parties to arrive at an agreement. These include:

• Facilitating communication between both parents in order for them to express their concerns
• Identifying the issues that are causing the custody dispute
• Proposing possible solutions to the problem

Developing a Parenting Plan

If the mediation process helps both parents to arrive at an agreement, this should be put in writing and designated as a parenting plan. This plan, which should be signed and dated by both parties, can cover multiple areas ranging from child support and time spent with the child, to an outlined process for making changes and resolving disagreements. Parenting plans can also be made legally binding by having the court review it and make it into a consent order.

Shared Parental Responsibility

Australian law designates that both parents share a responsibility to cater for the child in areas such as healthcare, education, and being involved in the child’s upbringing. During a custody dispute, this shared responsibility is often considered and a process needs to be worked out as to how both parents will cater for these needs.

Shared responsibility does not necessarily mean equal time spent with the child. It also does not apply to cases where child or family violence has occurred.

Time Spent with the Child

During a custody dispute, one of the top issues of contention is how much time each parent will spend with the child. This issue is determined under the family dispute resolution process where both parents are urged to negotiate an agreement as to how the time with the child will be shared. Terms of custody negotiation does not necessarily equate to both parents spending equal time with the child. It also doesn’t have to be similar to a property settlement.

If the negotiation process fails, the court will determine a time arrangement that best serves the interests of the child.

Decisions are made in the best Interests of the Child

Throughout the dispute resolution process, all decisions should be made in the best interests of the child. If the custody dispute ends up in court, the judge will consider factors surrounding the dispute and make a decision that is in the child’s best interests.

The court considers factors such as the child’s preferences based on his/her age and maturity level, the relationship the child has with each parent, the ability of each parent to provide for the child, and extenuating circumstances such as family violence.

The ugly truth about any child custody battle is that unless properly handled, by trained professionals, one of the biggest victims is the child.

Call now and speak with an experienced lawyer on 1800 217 217 or email mail@aylwardgame.com.au for more information.

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United Service Club
Level 4, 183 Wickham Terrace, Brisbane QLD 4001

Free: 1800 217 217
Phone: 07 3236 0001
Fax: 07 3236 0005
Email: mail@aylwardgame.com.au

Article Source: Dispute Resolution 

Are You Affected By A Retaining Wall Dispute?

This article aims to briefly discuss the challenges facing residential neighbours when a dispute between two neighbours in relation to a retaining wall arises. Generally, an attempt is made here to simulate the subject with recommendations as to how you may resolve the dispute with your neighbor.

Retaining wall in a nutshell

Retaining walls is not defined in the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (NDA). Instead, the phrase is defined in the Macquarie dictionary to mean a wall built to hold back a mass of earth, for example. Generally, retaining walls involve engineering specifications prior to construction. The tribunals have said, that, unlike fences, it is not usually possible to make both adjoining owners liable for the cost of maintaining, repairing or replacing a retaining wall. This is because usually, a retaining wall is of greater benefit to one of the adjoining owners. For clarity, the retaining wall is not a fence for the purposes of the NDA.

What are the common challenges arising from a retaining wall dispute?

Usually, the dispute surrounding a retaining wall becomes more complex, where the retaining wall is on the common boundary of the adjoining owners’ properties. That is to say, the retaining wall holds back to earth on one of the owner’s property more than the other. The issue becomes further complex whereas one neighbour refuses to repair their portion of the retaining wall which also stands as a dividing fence between the adjoining owners.

Will a tribunal make an order about a retaining wall dispute?

Generally speaking, section 35 of the NDA provides the tribunal jurisdiction to make orders about fencing work. That section is said to be an ancillary power which would enable the tribunal to make orders about retaining walls as an adjunct to an order about fencing work, but not otherwise. More specifically, section 35(1) (f) of the NDA permits a tribunal such as QCAT to decide and order any other work to be carried out that is necessary to carry out the fencing work including a work for a retaining wall.

Do I have any other option other than going to the tribunal?

Sometimes, not always, it may be open to you to consider reaching out to your neighbor in order to resolve your retaining wall dispute amicably. We highly recommend that you seek qualified legal advice in relation to how you may want to conduct a negotiation with your neighbour. This is to avoid compromising your case/rights and to protect your best interest. It is also prudent to do some research prior to discussing the matter with your neighbour. This includes but is not limited to, reviewing the approvals for the development of the retaining wall and to find out the relevant information in relation to the boundary identification of your and your neighbour’s properties.

What if my negotiation with my neighbour fails and I don’t want to go to tribunal either?

There is a free dispute resolution conference that you and your neighbour may avail without the need to have lawyers involved. This will involve a third-party mediator. However, we strongly recommend that prior to going to the conference you seek qualified legal advice so you are fully prepared and informed.

For advice or assistance with all property, commercial and residential matters, contact the Property and Litigation Law Team at Aylward Game Solicitors today on 1800 217 217

Article Source: Retaining Wall Dispute