child custody

In any dispute concerning child custody and where children will live, the starting point is Section 65E of the Family Law Act 1975. There are normally two separate hearings, an interim hearing and a final hearing.

An interim child custody hearing will usually take place between one and two months after the filing of an application with the court. It normally begins with the judicial officer reading any sworn statements (affidavits) from each of the parties, then hearing submissions from each party (The submissions cover the issues that should be focused on, and what can be concluded from the statements) A decision is then made concerning the arrangements for the child until the final hearing. The proceedings at an interim hearing are not designed to get to the bottom of any issues or allegations. There is generally no cross examination to test who is telling the truth. That is the role of the final hearing. The interim hearing is designed to put an arrangement in place that will protect the children from harm and maintain the current status of their relationships with the parents until the final hearing.

It make take up to a year before the final child custody hearing takes place. How long it takes depends on the court in which the application is to be heard. In some cases the delay may be longer than a year.

At a final hearing, all witnesses who have given sworn statements (affidavits) will usually be required to attend court to be cross examined. All the evidence is presented to the judge, including any relevant documents. In some cases, a report from a court-appointed counselor, psychologist or psychiatrist who has interviewed the parties and observed the children, is presented to the court. In those cases, the counselor may also be cross examined.

The parties then make submissions to the judge. After considering and weighing all of the evidence, the judge then gives a decision on child custody and makes orders for the arrangements for the children. The orders stand until each child's 18th birthday or until further orders are made by the court.

The Family Law Act places parental responsibility on both parents, regardless of whether they separate or enter new relationships. According to sections 61B to 61DB of the Family Law Act, parental responsibility refers to the duties, powers, responsibilities and authority which parents have in relation to their children.

The Act says: "In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration."

When applications for parenting orders are filed with either the Family Court or the Federal Magistrates Court, both parties are ordered to undergo “pre-action procedures” including participation in dispute resolution. A court will require a certificate from an accredited family dispute resolution practitioner before an application for parenting orders can be filed with the court.

Reaching a settlement out of court saves you and your family considerable time, stress and money.

Pre-action procedures are a requirement except in circumstances where there is family violence, child abuse or urgency.

Armstrong Legal will not only represent you in court. We are committed to assisting you in the process of dispute resolution outside of court as well as with the formalisation of agreements.

Parenting orders are legally binding arrangements which cover the following:

• Parental responsibility and decision-making
• With whom the child will live
• The amount of time with which a child will be allowed to spend or communicate with the other parent
• Child maintenance orders (although these are less frequent because most children are now covered under the Child Support Scheme).

If no out-of-court agreement can be reached, then an application for parenting orders must be submitted to either the Family Court of the Federal Magistrates Court. A parenting order may also be applied for by:

• The child
• A grandparent
• Any other person concerned with the care and welfare of the child

The decision is then made through a court hearing. The court bases its decision on what is in the best interest of the child. More information about how the court makes its decision can be found Section 60CA, Section 60CC and Section 64B of the Family Law Act 1975.

Under the Child Support (Assessment) Act, the primary carer of the child can make a claim for child support from the other parent. The Child Support Agency is responsible for administering your child support arrangements, and assessing the amount of support which should be provided. The decision is based on each parent's income, the number of children and their living arrangements.

If the Child Support Agency makes an assessment which does not seem just or equitable, it is possible to apply for an independent review of the assessment by a Senior Case Officer (SCO). The review is determined through a hearing. If you believe that your assessment needs reviewing, Armstrong Legal can assist with the preparation of material and important submissions in order to achieve the best outcome for you and your children.

It is also possible to enter into a private child support agreement with your former spouse, without having to go through the Child Support Agency. Armstrong Legal is experienced in drawing up private child support agreements and can assist you in the negotiating and formalising an agreement with your former spouse.

At Armstrong Legal, we have specialist family lawyers who assist people through the difficulties associated with the breakdown of relationships, divorce and issues in relation to child custody and residence of children.