Whenever an existing relationship breaks down, there are several important issues to be resolved. Most importantly, the welfare of any children should be considered. Sometimes, separating parents put too much emphasis on other issues such as the distribution of assets and property.
Any issues regarding child custody that cannot be resolved amicably by the two parents will need to be resolved in one or other of the courts that deal with family law matters. The Family Law Act 1975 (Commonwealth) covers all issues relating to child custody after a relationship has ended, irrespective of whether the partners are married, adoptive, same sex or de facto. The Act covers issues such as the ongoing financial care and welfare of the children as well as residence issues.
When a dispute over child custody is brought before the court, an interim child custody hearing will be arranged, usually within a month or two after an application has been filed. The main purpose of the interim hearing is to provide a temporary arrangement for the children until the final hearing takes place. Normally, sworn statements from each party are read out and then submissions from the parties are heard which focus on the issues to be resolved. The interim hearing will then make a decision about the custody of the children until the final hearing takes place. At this stage, none of the parties are cross-examined, as the intention is not to find out or verify the truth behind the submissions.
The final hearing normally takes place within a year, or sometimes a little longer, after the interim hearing. Sworn statements from any witnesses are heard, experts who have interviewed the parents and observed the child(ren), such as psychologists, psychiatrists and counsellors are able to give their statements. Submissions from each party are then heard. Witnesses, experts and the parties concerned can be cross-examined at this stage.
The judge will weigh up all the information and make a final decision on the care and welfare of the children, acting in their best interest. This final decision takes into account two primary considerations: providing a meaningful relationship between the children and their respective parents as well as ensuring that they are not exposed to any harm.
This decision, unless changed by a later court hearing, will decide the custody arrangements concerning the children until their 18th birthday.