Resolving Custody Disputes: 4 Important Steps

A separation or divorce is one of the hardest things a family can go through. Most of the time it is the child (or children) who suffer the most from a family breakdown. If you’re at the stage of deciding about custody arrangements for your children, it’s important you make your decision with their best interests at heart. You will need to think about things like where they will live, their schooling, how much time they’ll spend with each parent and how you’ll share the costs of raising them, even though you are no longer a family unit.

No matter how strong your ill-feelings are towards your ex-partner, remember you will be co-parenting with them for a long time. Finding a way to be kind and support each other in this process will be the best outcome for your child or children.

Legally, both parents have parental responsibility for their child until they reach 18 years of age whether you are in a committed relationship or not. Parental responsibility means the legal duties, powers, responsibilities and authority parents have according to the Family Law Act 1975 (sections 61B to 61DB). When starting the process of deciding on custody arrangements, there are four important things to should consider.

Agreement between both of you

The first thing you must do is try to reach an agreement about how you will continue to parent your children even though you are separated. In some situations this is not possible (for example, family violence) but if this does not apply to you, you will need to discuss the following important points with your ex-partner:

  • How does the age of your child impact on your custody arrangements (for example, toddlers may not be able to spend long periods of time or overnight away from their primary caregiver)?
  • What sort of routine will you establish for your child or children? Setting up a routine is key in helping your child get used to their new life. This routine should be flexible enough to factor in things like special family celebrations, time with their grandparents, school events, religious holidays or even unexpected illnesses.
  • Will equal time with each parent work best for your child? Or is a block of time, such as weekends and school holidays, better for them?
  • If your child is school-aged, who will drop them off, pick them up and care for them outside of school hours?
  • How will you continue to financially support them? How much child support will you pay?

Once you’ve had these discussions, you can formalise the arrangements. There are two ways to do this however, we suggest you seek advice from a family lawyer about the best way for you before formalising.

How To Formalise Your Parenting Agreement:

Parenting Plan
This is an agreement drawn up between you and your ex-partner. It is not binding and will not stand up in court.

Consent Orders
This is an agreement drawn up between you and your ex-partner but it can be enforced by the Court; this is important if either one of you breach any of the arrangements.

Both these ways of formalising your parenting arrangements are the most ‘friendly’ and cost-effective. If you choose a ‘Consent Order,’ the Family Court or Federal Circuit Court of Australia can formalise the agreement for you. Just remember: there are penalties for breaching Consent Orders and the Court will not be happy if you do so without a reasonable excuse.

If you’ve tried to make a custody arrangement with your ex using one of these methods but not had any success, your next option is to apply for a Parenting Order.

Parenting orders

If you can’t reach an agreement with your ex-partner, you can apply to the Court to serve an Initiating Application to start the process of a Parenting Order. Two important conditions before you can apply:

  1. You must have made genuine attempts to reach agreement with the other parent.
  2. You must attend a ‘Family Dispute Resolution Conference’ (except in cases of family violence or child abuse). This is a special mediation service designed to help families avoid court hearings. You must obtain a certificate to prove you attended this meeting before you can apply for an Initiating Application.

If the matter proceeds to court, they will then decide the following terms of the Parenting Order:

  • Who your child will live with
  • The amount of time your child will spend with each parent and other significant people
  • If there will be equal shared parental responsibility
  • What types of communication are allowed between your children, yourself and your ex
  • Any other special and significant matters

The Court always decides on these matters based on what is in your child’s best interests. The Court takes lots of factors into consideration when deciding this. These are referred to as the section 60CC Factors as they are contained in section 60CC of the Family Law Act.

Two big factors are:

  1. How crucial it is for your child to have a meaningful relationship with both parents
  2. The need to protect your child from physical or psychological harm such as abuse, neglect or family violence (the Court gives this factor the most weight)

There are other factors they may consider such as:

  • Your child’s views (taking into account your child’s maturity and level of understanding)
  • Your child’s relationship with each parent and other significant people
  • The likely effect the change in circumstances will have on your child
  • How difficult, expensive or time-consuming (for example, travel time) it may be for your child to communicate with the parent they don’t live with
  • Each parent’s ability to provide for their child’s needs
  • Any other matter that the Court believes is relevant

The Court may appoint an Independent Children’s Lawyer and order a Family Report to assist them in making their decisions.

Attending court for a Parenting Order is a much more formal and costly process than if you were to reach agreement on your own with your ex. It’s also a lengthy process as it involves many people so an interim order may be made for your child’s custody during this time. Make sure you comply with any interim orders made by the Court as any breach made can have serious consequences. It is also important you cooperate with all the people involved in your case such as the Court, the Independent Children’s Lawyer and the Family Report Writer.

Child support

We know this can be a hot topic for a separated couple but the best way to think of it is that it’s an amount paid for your child’s expenses … it’s not a bonus to the other parent.

By law, a child under the age of 18 years must be financially supported by both parents, even if they aren’t in a relationship. Child support pays for their food, living, educational, medical and clothing expenses. It is usually paid by the parent the child does not live with.

You can agree to an amount between you and your ex-partner through an informal arrangement or a formal Binding Child Support Agreement. During this time, either one of you can apply to the Child Support Agency (Department of Human Services) for an assessment or review of the amount of child support. The Child Support Agency can also enforce payment of Child Support.

If you are going through the Parenting Orders process, you must ensure you get an assessment of Child Support through the Child Support Agency and then continue paying the amount as required.

Don’t forget – try to keep it nice

Regardless of how your relationship ended, your ex is also your child’s parent and you both share a love for your child. Making sure the process of splitting up is as smooth and civil as possible will ensure your child can continue to grow and develop in a loving and supportive environment … with both parents involved in their life.

We hope you found the information in this article valuable but keep in mind it is no substitute for legal advice. If you need further legal assistance with your custody dispute please contact us at Know the Law. We have a good network of lawyers who can help you should you need it.

More helpful articles and resources

1. Australian divorce guide

2. 4 steps to resolving custody disputes

3. What to do if you’ve been left out of a will

4. General information about family law

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