Being able to openly communicate and reach an agreement with your partner will not only make life easier for both parents but it will also be a much better outcome for your child. When the time comes to jointly make decisions about their future, the relationship will be less strained than if you had settled the dispute in court.
Speaking to a solicitor will help you to understand your rights and obligations in relation to parenting and custody issues. They will inform you of alternative methods to settle the dispute and if necessary; explain the process involved with court proceedings.
Alternative Dispute Resolution
There are many services available that occur in an informal setting with the aim of facilitating reconciliation or assisting in the divorce process.
If there is no chance of reconciliation, they can assist with matters relating to children, property and finances as well as providing counselling services to help families communicate more effectively and cope with the breakdown of the family unit. These services can include:
- Counselling for families
- Relationship advice line
- Family relationship centres
- Dispute resolution for families
- Alternative Dispute Resolution
If the parties cannot agree, an application will need to be made to the Family Court or the Federal Circuit Court for Parenting Orders. Grandparents or any person concerned for the welfare of the child may also apply for a court order.
The orders will often cover the following:
- Who the child will live with
- Time to be spent with each parent
- Allocated parental responsibilities
- Consultation requirements
- Dispute resolution processes
- Parenting Orders
Step 1: Procedural Hearing
An initial hearing will take place approximately 2 months after the application has been made. The purpose of the hearing is to ensure that suitable arrangements are in place for the child until a decision is made in relation to custody. The registrar will also determine whether the case will proceed to the Family Court.
Step 2: Child Responsive Program
This program is designed to assist parents in understanding their child’s needs and how separation may be affecting them. The child will be given an opportunity to speak with a family consultant (social worker or psychologist) who will then provide the parents with feedback and guidance.
Step 3: Less Adversarial Trial
If the parents are still unable to reach an agreement, they will be required to attend a Less Adversarial Trial where the same family consultant will provide evidence in court. These hearings are often less formal and aim to be more inclusive than a standard trial.
Both parents will need to submit a Parenting Questionnaire at least 28 days before the trial, which will be provided to you following the Child Responsive Program. The purpose of this document is for the court to gain an understanding of your current situation. ‘Full and frank disclosure’ of your circumstances is essential when completing the questionnaire. This will form the basis of your evidence.
Where the parents cannot agree, the court will make a parenting order where it will state whether the child will spend equal time with each parent or a substantial amount of time with one parent. This will also depend on what is reasonably practicable with certain matters taken into account such as the distance between both parents, how they communicate with each other and how the decision will impact the child.
Best Interests of the Child
When a court assesses a parenting application, the paramount consideration is the child and ensuring their interests are protected. The primary considerations, as stated in the Family Law Act 1975 (Cth), are that the child should have:
- A meaningful relationship with both parents; and
- Protection from physical or psychological harm;
Additional considerations may include:
- The child’s view;
- The child’s relationship with both parents and other possible guardians;
- Whether both parents have actively played a role in the child’s life; or whether they have failed to do so;
- How the child may be effected if circumstances change;
- The emotional and intellectual needs of both parents
- Both parent’s attitude to the child and their attitude to parenthood
- Whether there has been any family violence
- Aspects such as the parent’s maturity, age, lifestyle and culture may also be considered along with any other factors the court thinks are relevant.
Equal, Substantial, Significant time
When a court makes a parenting order, it considers what is reasonably practicable in relation to time spent with each parent. Where equal time is not practicable, substantial and significant time is considered, which is often 4-6 nights per fortnight.
Shared Parental Responsibility
Typically, a parenting order will state that the parents have equal shared responsibility meaning that you will need to discuss any major decisions relating to the child.
Whilst the parents should jointly make decisions about the child, it is not necessary to consult the other person about everyday matters. For example, when the child is in the care of one parent, that parent will be able to make everyday decisions for the child provided they don’t relate to major long-term issues.
Exceptions to Dispute Resolution
In certain matters,-action procedures such as mediation and counselling will not be necessary and the case will proceed immediately to court. Reasons for this can include:
- Child abuse or a risk of child abuse;
- Family violence or a risk of family violence;
- Circumstances of urgency;
- Incapacity or remoteness of a party
Including this information when making your initial application to the court is important. This will involve filing an affidavit (sworn statement) outlining why a party cannot attend any pre-action procedures.