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Child custody

Commonly asked questions about child custody and parenting arrangements

A parenting plan is an informal agreement made between you and your former partner that establishes parenting arrangements for children. It is not legally enforceable, however you can apply to make it binding by applying to the court for consent orders. Consent orders are an agreement between you and the other party which is approved by the court and then made into a court order.

By doing so, you are adding protection in case of circumstances changing or future disputes. You do not need to consult with a lawyer to make or to change a parenting plan, however legal advice can be sought to ensure all important considerations in the plan have been incorporated, and that the children’s best interests are prioritised.

You can read more about parenting plans here.

Parenting plans can incorporate any details that you and your former partner wish to include. Ultimately, parenting plans should ensure that children have access to both parents in a substantial and significant way. Some examples of details that can be included are:

  • Who the child lives with
  • Who the child spends time with and how they communicate with the other parent
  • What happens on important family events such as Christmas Day, Easter, school holidays, birthdays, Father’s Day and Mother’s Day
  • Access to extended family and other significant people in the child’s life
  • Division of parental responsibility and decision-making
  • Financial arrangements
  • Process for dispute resolution about the child custody arrangement

Parenting plans are informal plans made by you and your former partner. While they are not legally binding, they will usually be taken into consideration by the court if it has been signed by both parties and was formed without threat or intimidation.

If parents cannot agree on arrangements for the children’s care, and family dispute resolution has failed or is deemed not appropriate, then you can apply for a parenting order from a family law court. Parenting orders are made by the court and are therefore binding and legally enforceable. This means you have legal recourse should your former partner not abide by the agreement that was made.

If parents cannot agree on child custody, you can file an application for parenting orders with either the Family Court or the Federal Circuit Court. However, in the majority of cases, you are required to attempt to resolve the issues with your former partner through family dispute resolution before filing the application with the court. Should family dispute resolution fail to provide an outcome, your application for parenting orders must include the certificate which will be issued by the accredited family dispute resolution practitioner who conducted your family dispute resolution counselling.

Once the application has been filed with the court, your matter will be allocated its first court date, commonly referred to as a directions hearing. At this directions hearing, the judge will assess your matter in consultation with both parties, and make appropriate directions to progress your matter towards eventual settlement or a final hearing.

If the parties have still been unable to reach any agreement on parenting arrangements at the directions hearing, the court may allocate an interim hearing as soon as the court can accommodate. At the interim hearing, sworn statements or affidavits from each party will be read, as well as submissions being heard from each party. An interim decision for parenting arrangements will be made, and will usually then remain in place until the final hearing.

In some cases, it can take well over a year for the final child custody hearing to occur. At this hearing, all evidence is presented to the judge, and all witnesses who provided sworn statements or affidavits will attend and be cross-examined. The parties again make submissions to the judge.
The judge will then make a decision, after careful consideration of the evidence, and order the parenting arrangements he or she considers to be in the children’s best interests.

Parenting orders remain in place until the child turns 18, or until further orders are made by the court.

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