The Australian family law system encourages people to resolve family law matters out of court whenever they can. Out of court settlements can be reached through alternative dispute resolution processes such as mediation and negotiation. Of course, there will be circumstances where it is not possible to resolve the matter in question without resorting to court action. If you're entangled in a family law dispute with your former spouse over who should have custody of the children, you should seek counsel from a family law lawyer before acting on the matter.
Seeking legal counsel does not necessarily mean that you're initiating the stressful, time-consuming and costly court process. It is about getting information and enlightening yourself, irrespective of how your matter will be taken up. But like mentioned earlier, there are instances where child custody matters must be determined by the courts, including:
Where child abuse is involved.
Parents are expected to do everything they can to protect their children from all forms of abuse, be it physical or emotional. In cases where the protector-turns-perpetrator, the matter will be treated as a crime that must be brought to the attention of the courts. If it can be proved that a parent perpetrated child abuse is enough grounds to ensure that they are denied custody rights over the children. Subsequently, criminal proceedings may be initiated against the accused parent.
Where a child has been abducted.
The Australian family law system considers parental child abduction to be a criminal act and not a civil matter that should be brought to the mediation or negotiation table. Parental child abduction occurs when one parent retains a child, either forcefully or through persuasion. If the other parent has abducted the child, the matter will call for court action.
Where the child has been neglected.
If a parent has neglected their responsibilities when it comes to caring for a child, the matter will call for court action. The parent could have deliberately refused to meet the needs of the child, and therefore putting the child under their care would not be in the best interest of the child. Generally speaking, mediation and negotiation shouldn't be resorted to where there is a risk that the needs of the child may be jeopardised.
When it comes to child custody cases, the circumstances of each case are different. If your lawyer determines that your matter requires court action, they may offer to represent you so you can get a favourable outcome.