Family Law Library

Child Custody – The Basics

Child Custody – The Basics

The Australian legislature made significant changes to the way the courts approach custody issues in 2006. This legislation indicated a strong preference for parents to reach an agreement without resorting to litigation, and also for parents to enjoy shared parental responsibility.

Consistent with the legislature’s aims, you are required to attend family dispute resolution to reach an agreement before using the courts to determine your custody issues. After completion of family dispute resolution, you will be issued a certificate that must be filed with your application to the court for a parenting order. The court will not entertain an application without a certificate except for extreme circumstances (ie, threat of violence or abuse).

There are many dispute resolution methods you may use in order to reach an amicable agreement regarding custody. You may use the government sanctioned Family Relationship Centres and Family Advice Line, or you could use other methods such as collaborative law or arbitration.

Once you have completed the required dispute resolution process, you may apply for a parenting order. This order will address whom the child should live with, how much time the child spends with each parent, and the nature and type of communication the child should have with each parent among other issues. These orders are fully enforceable and failure to comply with a parenting order could have serious repercussions.

You may also reach an agreement with regard to parenting through something known as a parenting plan. A parenting plan is an informal agreement between parents that addresses similar issues that a parenting order would address. The major difference between a parenting plan and a parenting order is that the former is not enforceable like a court order and therefore the breaching party is not subject to the same sanctions.

Should you be unable to address your parenting issues through dispute resolution services or a parenting plan, you may litigate your case in court. There are certain procedural rules with regard to parenting proceedings that exist to make this process as smooth as possible for the child or children involved.

The main thing to keep in mind with regard to parenting is that all parties involved should be acting with the best interest of the child at heart. The court will apply this standard if asked to address parenting issues and it should also be the main consideration for parents when trying to settle their dispute.