Articles and legal news from the Atkinson Vinden Team.

Child Custody: How Does It Work?

Family Law

Any divorce or a separation is a stressful and difficult time for all involved parties, but separations involving children can often prove even more difficult to navigate. Negotiating or fighting for child custody can be a complicated and tension-filled process so it’s important to understand the basic process before getting started.

Child Custody in Australia

Child custody laws are the same across Australia. Everything falls under the Family Law Act 1975 (Commonwealth) which is a federal law. This means that all child custody cases in Australia fall under the same law, regardless of state or location. 

The Family Law Act 1975

Under section Section 60CA of the Family Law Act 1975, the court has a duty to make decisions in the best interest of the child or children. The primary considerations for the court relating to this are:

(a) To facilitate a meaningful relationship between the children and both of their parents; and

(b) To protect the children from harm

These laws and considerations apply regardless of whether the parents are married, de facto, adoptive or same sex couples. 

What Are Parenting Orders?

Parenting orders are essentially another word for custody arrangements. They are legally binding arrangements issued by the court that determine a number of things from parental responsibility and decision-making, living arrangements for the child, how much time the other parent can spend with the child and any applicable maintenance or child support. 

Pre-Action Procedures

Before an application for a parenting order can be filed with the court, both parties must undergo ‘pre-action procedures’ which includes dispute resolution. A certificate from an accredited family dispute resolution practitioner is therefore required by the court before any further hearings can be held. Pre-action procedures are mandatory except in circumstances of child abuse or violence.

Atkinson Vinden Lawyers encourage all clients to attempt to resolve their issues out of court whenever possible. We do however advise that you do so with the assistance and guidance of professional lawyers.

Above all else, your child’s welfare is the most important thing and coming to an agreement out of court could protect you and your child from months of unnecessary stress and heartache. It will also save you a great deal of time and money. 

The Court Process

No two child custody cases are exactly the same but generally the process consists of two hearings, an interim hearing and a final hearing.

The interim hearing takes place a month or two after the application is filed with the court. It is not designed to investigate any issues or allegations but is used to decide arrangements for the child until the final hearing begins. It usually involves the reading of sworn statements (affidavits) from each party followed by a hearing submission from each party. Following this, a decision will be made as to arrangements for the child that will allow them to maintain their current relationship with each parent and be kept out of harm’s way until the final hearing.

The final hearing may not occur for a year or more after the initial application is submitted, depending on the court. During the final hearing, all parties, including witnesses, who have provided affidavits will most likely be cross examined. All relevant documents and evidence will be provided to the judge at this stage including any reports from court-appointed psychologists or psychiatrists if required.

After considering all the evidence, the judge will make a decision and order arrangements regarding child custody. These orders will stand until the child’s 18th birthday or until further orders are issued by the court.

Are You Ready To Take The Next Step?

Child custody arrangements is a sensitive issue that should be handled with care. Attempting to handle the process alone could prove detrimental to your case as well as your child’s wellbeing. You should talk to a professional before making any decisions.

Contact Atkinson Vinden Lawyers today for an obligation free consultation. Our expert lawyers will explain the child custody process in detail and help you understand how best to present yourself as an eligible parent fit for custody. We can help you navigate this difficult time and find the best solution for your family.


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