Child Custody

If you have separated from your partner the relationship with your children continues, although it takes a new form.

The terms residence and contact (previously known as custody and access) are no longer used and have been replaced with new terms reflecting a greater emphasis on shared parenting wherever possible. 'Lives with' replaces residence and custody. The terms 'spends time with' and 'communicates with' are used instead of 'contact' and 'access'.

In many instances, people formalise the arrangements for the care of their children after they separate. This can relate simply to where the children live on an ongoing basis. It can also relate to other matters that are important to parents such as how they will communicate with one another in relation to their children, where the children will go to school, and where the children will be collected and delivered as they go between their parents' care.

Issues relating to all children fall under the Family Law Act 1975 (Commonwealth). They are dealt with through the Family Court, the Federal Magistrates Court or the Local Court. These courts cover issues relating to child custody laws, residence of children and ongoing financial support of children. It doesn't matter whether the parents are married, de facto, same sex couples or adoptive.

The court bases its decision on what is in the best interest of the child. More information about how the court makes its decision can be found Section 60CA, Section 60CC and Section 64B of the Family Law Act 1975.

There are normally two separate hearings, an interim hearing and a final hearing.

Child Custody - Interim Hearing Process

An interim child custody hearing will usually take place between one and two months after the filing of an application with the court. It normally begins with the judicial officer reading any sworn statements (affidavits) from each of the parties, then hearing submissions from each party (The submissions cover the issues that should be focused on, and what can be concluded from the statements) A decision is then made concerning the arrangements for the child until the final hearing. The proceedings at an interim hearing are not designed to get to the bottom of any issues or allegations. There is generally no cross examination to test who is telling the truth. That is the role of the final hearing. The interim hearing is designed to put an arrangement in place that will protect the children from harm and maintain the current status of their relationships with the parents until the final hearing.

Child Custody - Final Hearing Process

It make take up to a year before the final child custody hearing takes place. How long it takes depends on the court in which the application is to be heard. In some cases the delay may be longer than a year.

At a final hearing, all witnesses who have given sworn statements (affidavits) will usually be required to attend court to be cross examined. All the evidence is presented to the judge, including any relevant documents. In some cases, a report from a court-appointed counselor, psychologist or psychiatrist who has interviewed the parties and observed the children, is presented to the court. In those cases, the counselor may also be cross examined.

Pre-Action Procedures

The parties then make submissions to the judge. After considering and weighing all of the evidence, the judge then gives a decision on child custody and makes orders for the arrangements for the children. The orders stand until each child's 18th birthday or until further orders are made by the court.

When applications for parenting orders are filed with either the Family Court or the Federal Magistrates Court, both parties are ordered to undergo "pre-action procedures" including participation in dispute resolution. A court will require a certificate from an accredited family dispute resolution practitioner before an application for parenting orders can be filed with the court.

Reaching a settlement out of court saves you and your family considerable time, stress and money.

Pre-action procedures are a requirement except in circumstances where there is family violence, child abuse or urgency.

For more information about children's matters talk to a family lawyer in your area