Child Custody

It will be necessary to decide where your children will live following separation and what time they will spend with each parent.  Parents are at liberty to make whatever arrangements they consider appropriate for their own child and are encouraged to do so by agreement.

If you are unable to agree on suitable arrangements for your child, a Court can decide those arrangements upon the application of either party.

Before either party can apply to the Court, you are expected to first make a genuine effort to resolve your dispute via ‘family dispute resolution’ in an attempt to avoid Court proceedings.  Registered family dispute resolution providers are available to mediate the dispute.  We can recommend you to the best person to suit your situation.

If the dispute remains unresolved, or one party fails to participate in the process, the family dispute resolution provider will issue a section 60I certificate, which enables a party to then commence Court proceedings. The section 60I certificate remains valid for 1 year. Court proceedings can only be commenced without a certificate in limited circumstances.

The Court can make parenting orders which deal with one or more of the following:

• the person or persons with whom the child shall live;
• the time a child is to spend with another person; and
• the allocation of parental responsibility for a child.

When determining the parenting orders for a child, the primary consideration for the Court is the best interests of the child. The Family Law Act 1975 sets out various factors that the Court takes into account when determining the best interests of a child.

The two primary considerations are:

• the benefit to the child of having a meaningful relationship with each parent; and
• the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

There are a number of secondary considerations considered by the Court, including the following:

• any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to a child’s view;
• the nature of the child’s relationship with each of the child’s parents and other persons (including the child’s grandparents or relatives);
• the extent to which each parent has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child, to spend time with and to communicate with the child; and
• the likely effect of any changes to the child’s circumstances, including the effect on the child of any separation from the other parent and/or its siblings.

It is also important that the age of the child are taken into account when making decisions about their parenting arrangements. If a child is of a young age, it may be appropriate to revisit the arrangements as a child grows and their needs and development changes.

If you need assistance in determining the appropriate arrangements for your child, we can help – contact our experienced Child Custody Lawyers and make an appointment to discuss your situation today.