Questions About Child Custody

Proceedings relating to children are issued under Part VII of the Family Law Act(FLA). They may be issued if the child, a parent or a party to the proceedings is either present or ordinarily resident in Australia or an Australian citizen. (Sect 69E FLA).

The Family Court, The Federal Circuit Court and the Local Court have the power to deal with all issues relating to children under the Family Law Act 1975. It does not matter whether the parents are married, de facto, same-sex couples. 

The status of the union is immaterial, what matters most are the children who will always be the primary consideration in the resolution of the marital issues.

Custody" means that a parent has legal custodial rights and responsibilities toward the child. "Joint custody" means that both parents have the legal custodial  rights and responsibilities toward a child. Under joint custody, neither parent has legal custody rights superior to the other. Joint custody does not necessarily mean that the child spends equal time with or lives with both parents.

A parent may have joint custody even  though a child resides with another parent

On the application of either party, the court shall consider granting joint custody in cases where the parents do not agree to joint custody. When determining the joint custody arrangement that is best for the child, the court must consider.

Divorce - Child Custody Law - Interim Parenting Hearing Process

In family disputes, it is always advantageous to settle children matters amicably. Hence, there should be alternative methods of resolving family conflicts before reaching the courts. You may wish to apply for interim orders (temporary orders) if you and your former partner cannot agree on where a child lives, the arrangements for a child to spend time with a parent in the meantime or if there is some urgent need to obtain orders.

An interim hearing is a short hearing where the Court makes temporary orders (interim orders) about a case while you are waiting for a final decision. There is no limit to what may be included in an application for interim orders. However, to apply for interim orders, you must also apply for final orders.

Applications for interim orders are made using an Initiating application if you are commencing a case, or are in a case where an  Initiating Application has already been filed in the current proceedings, an application in a case and an affidavit.  Before filing an application for a parenting order, you (as the applicant) must obtain a certificate from a family dispute resolution practitioner.

There are, however, certain exceptions, such as family violence, child abuse or urgency.

In all matters about children, the Court must consider the best interests of the children. In considering interim applications, the  Court will be especially aware of the need for stability in the children's lives. The Court will usually only change arrangements on a  temporary basis if there is an urgent need to do so.

Divorce - Child Custody Law - Final Parenting Hearing Process

A child custody hearing is an emotionally charged proceeding even under the best of circumstances. In some family law registries, it may take 12-18 months or more before an Initiating Application (Final Orders Application) reaches a  trial. A final hearing is usually conducted in the following way:

  • Applicant’s evidence – you (or your lawyer) outlines your case. The respondent may cross-examine you or your witnesses. You may then re-examine your witnesses.
  • Respondent’s evidence – you (or your lawyer) outlines your case. The applicant may cross-examination you or your witnesses. You may then re-examine your witnesses.
  • Independent Children’s Lawyer – If there is an independent children’s  lawyer appointed, they may also present evidence to the Court and cross-examine you or your witnesses.
  • Expert report - If a single expert, such as a family consultant, prepared a report you may cross-examine the expert.
  • Submission - The court gives you an opportunity to make any final comments in support of your case.

Pre - Action Procedures for Parenting Cases

The pre-action procedures are mandated by the courts so that the parties will undergo a voluntary and confidential problem-solving method in which the parties after having weighed all issues, and are given sufficient information and period to reconsider things; they voluntarily proceed with an agreement.

When applications for parenting orders are filed with either the Family  Court or the Federal Circuit 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.

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

Child Custody - Applying For Parenting Orders

Changes to the Family Law Act 1975 require people to attend family dispute resolution before they apply for parenting orders.

The Family Court will not accept an application for a parenting order unless a certificate from an accredited family dispute resolution practitioner is filed with the application. The certificate is a statement that the parties have not been able to resolve their dispute through family dispute resolution. It is important to note  that this requirement may not apply to cases involving 

People involved in disputes about the future arrangements for their children after relationship breakdown are required to make a genuine effort to resolve the matter by family dispute resolution, child abuse or urgency.If no out-of-court agreement can be reached, then an application for parenting orders must be submitted to either the Family Court of the Federal Magistrates Court

The decision is then made through a court hearing. 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.

The Best Interest of The Child

In making new arrangements after separation or divorce, children's  needs and their best interests are the most important consideration Section 60CA of the Family Law Act 1975 (Cth) provides that the court has a duty to make parenting orders that are in the best interest of the children.When considering what is in the best interests of the children, the court is to have regard to the primary considerations and additional  considerations. The primary considerations are:

To facilitate a meaningful relationship between the children and both of their parents:

  • Section 60CC(2)(Family Law Act 1975; and to protect the children from harm:
  • Section 60CC (3)(b)

Equal Shared Parental Responsibility

Shared parenting is about sharing responsibility for children - parents collaborate to do what is in the best interests of the children. Often, when parents are collaborating and sharing responsibility, children will spend substantial time with both parents but shared parenting is not measured by the amount of time children spend with each parent.Some parents are separated by distance or live in the circumstance where it is difficult to share overnight care - they can still share responsibility and collaborate to make decisions in the best interests of the children.

Section 65DAA of the Family Law Act 1975 (Cth)  provides that where parenting orders provide that there is equal shared parental responsibility, the court must consider whether equal time is in the best interests of the children and reasonably practicable in the circumstances.

If an order for equal time is not made, the court must have regard to what is known as substantial and significant time e.g. 4–6 nights per fortnight.

If an order for substantial and significant time is not made, then the Court must look at what other arrangement is in the best interests of the children and reasonably practicable.