Child Custody and Separation

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Child custody and separation

In making a divorce order, the court must be satisfied that there are appropriate arrangements in place for the care of children under 18 (including any from a previous relationship). However, the order can be made without formal child custody arrangements.

You can make a formal agreement about sharing custody of your child with your ex-spouse. You can do this through a non-binding parenting plan or by applying for consent orders from the court. Consent orders are binding and can only be altered if both spouses agree or in rare cases.

If you and your spouse cannot agree on child custody arrangements, you can participate in mediation. You can arrange mediation privately with your lawyer or through Relationships Australia’s Family Dispute Resolution. If you reach an agreement at this stage, you can formalise that agreement in a parenting plan or consent orders.

If, after mediation or Family Dispute Resolution, you still cannot come to an agreement, then you can file an application in the Family Law Courts asking the court to make Child Custody Orders. The Court will make orders that it determines to be in the children’s best interests.

Our family lawyers in Cairns can help you with all child custody matters.

Pre-action procedures

Before applying to the court for a parenting order, the law requires that you make a genuine effort to resolve issues with your child’s other parent.

Both parents must attend Family Dispute Resolution to attempt to resolve the situation. This is done through mediation with an independent expert, usually through a Family Relationships Centre, or with an Accredited Family Dispute Resolution Practitioner, or privately with your lawyer.

If your situation is urgent and involves family violence or child abuse, you may be able to apply directly to the court without mediation.

Contact our family lawyers in Cairns now for legal advice and support.

Applying for parenting orders

If both parents agree on the terms of the parenting orders, you need to submit the following documents (signed by each party) to the Family Court of Australia to formalise them:

  1. Application for Consent Orders
  2. Minutes of Consent Orders (setting out the terms of the agreement)
  3. Annexure to Proposed Consent Parenting Orders
  4. The court filing fee.

If you are unable to reach an agreement with your child’s other parent, and you want to start legal proceedings, you need to file the following documents in the Federal Circuit Court of Australia

  1. Initiating application
  2. Affidavit(s)
  3. Mediation Certificate, or Affidavit – Non-Filing of Family Dispute Resolution Certificate
  4. Notice of Risk
  5. The court filing fee.

In some cases, the application may need to be filed in the Family Court of Australia instead.

Our family lawyers provide expert service to help you navigate these steps and secure the best interests of your children. Start the process with an obligation-free consultation with one of our family law lawyers in Cairns.

Frequently Asked Questions

How do I prepare for family dispute resolution?

It is important to seek legal advice for any relevant issue you’d like to have discussed and resolved through mediation. It may be that you have some possible solutions to these issues. In this case, you should document how you’d like to see these resolved and be open to the other parent’s considerations and solutions.

Remember that family dispute resolution is a process that allows parents to make the decisions regarding their children, rather than a judge.

Why is it important to have a Consent Order?

The details contained within the Consent Order identify the details of child custody, such as who the child(ren) will reside with and how much time they will spend with each person.

Consent Orders are legally enforceable, ensuring all parties have certainty and security. The court may issue penalties to a party who does not adhere to the obligations of the Consent Order.

Please click here to read more frequently asked questions regarding parenting arrangements in a divorce or separation.