What to consider about child custody after a separation

Date: Oct 12, 2015

The end of a marriage or a relationship can be difficult for the separating parties, especially where children are involved. It is always important to consider their welfare and best interests if you choose to separate. Here are some issues to consider when making arrangements for the children's care after a separation:

What happens if we disagree about where the child lives?

If you disagree on the child's living arrangements and care following separation, it is worth trying a form of dispute resolution. Dispute resolutions offer both parties the chance to make an agreement on their own - or with the help of lawyers - without the court deciding for them. If this doesn't work out, the matter can then be taken to the Family Court.

Anyway, even if you end up taking your dispute to Court, you will be required to show to the Court that, prior to commencing proceedings, you have made a genuine effort to resolve the dispute through mediation. It is important, therefore, to make a reasonable effort immediately upon separation to communicate with the other party in an amicable manner about your children's arrangements.

In Australia, parents are required to undergo a mediation process before the court will hear their children's matter, except where allegations of abuse or domestic violence are involved or where the matter is urgent.

Does the matter have to go to court?

To work out your children's living and care arrangements after separation does not have to involve the court. Separated parents are free to avoid the courts entirely and to enter into an agreement about any aspect of their children's care and welfare. Such agreements can then be formally implemented in a Parenting Plan or a set of consent orders. The latter will need to be filed and approved by the Court.

Consent orders or a Parenting Plan may include terms of the parents' agreement regarding where the children will live, when they will spend time with the non-resident parent, if not in shared care, what school they will go to and how the parents will arrange for their medical treatment.

To assist parents in resolving their children's disputes out of court, there are a variety of non-court resolution options available to them, such as mediation and counselling.

What are the responsibilities of a parent during a separation?

Every parent has a duty to provide proper parenting to their child, regardless of whether they are married to their child's other parent.

Parents will have to stick to the arrangements set out in Consent Orders or a Parenting Plan until the child has turned 18 years old, unless parents agree to alter them, which can be done at any time by consent or through Court orders.

If you have any further questions about your children's living arrangements following separation, it is advisable that you seek legal advice from a family lawyer.