My x partners mother has my kids and there is no court order in place at the moment, I tryed to pick up my daughter from

Hi, I’m John Melis, solicitor, and I am in Australia. I want to thank you for taking the time to speak with me today. Your question means a lot to me. If I were in your position, I would feel just as you do. If I understand you correctly I suggest the following:

Parenting can be resolved amicably without court proceedings through family mediation with a counsellor or lawyer.

The Family Relationship Centre is an excellent option. You will be able to mediate the process without a lawyer. You can control the situation in the way you require for the protection and best interest of your child.

The Court assumes equal responsibility for the care and provision of children. However, various factors will influence this assumption. Factors include the current care arrangements for the child, finances, drug use, moral issues and criminal behaviour.

Despite the strong emphasis given to shared parental responsibility after separation, the paramount consideration of the Court remains the best interests of the child. Shared parenting outcomes are desirable, indeed preferable, but only where this is consistent with the best interests of the child.

There is a presumption that “equal shared parental responsibility” is in the best interests of children. An order made for equal shared parental responsibility imposes an obligation on the Court to consider ordering “equal time” or “substantial and significant time”.

Where the Court issues an order for shared parental responsibility, it imposes on parents an obligation to consult on “long-term issues”.

Long-term issues are defined explicitly in the Family Law Act to include matters such as health, religion, education, change of name and changes to living arrangements that make it significantly more difficult for the child to spend time with the parent.

The Court must also consider whether each parent has in the past fulfilled their responsibilities as a parent.

Parents can come to an agreement between themselves about their children’s care post-separation, without involving any court process. This agreement is a “parenting plan”. Because it is developed and agreed between both parents, there is no need for the Court’s involvement; it is an informal agreement.

A parenting plan will generally be more successful where there is a high degree of cooperation and low conflict between the parents.

Parents are free to alter the terms of the parenting plans whenever they wish. For example, where the child starts school and arrangements for the school holidays need to be made. In this way, parenting plans provide flexibility.

The parties to a parenting plan will generally be the parents of the child but could include other persons such as grandparents or step-parents who are involved in the care, welfare and development of that child.

The Family Law Act 1975 encourages parties to settle family disputes and to use litigation in the court system only as a last resort.

​I thank you kindly for reaching out today.

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If there is anything else, big or small, that I can help you with today, please let me know?