Parenting Arrangements

How does the custody of children work after separation?

man and woman discuss child care

Parenting arrangements are an important part of our family law system. They make sure you can spend time with your children. And that you're involved in those important decisions - where they go to school, what languages they speak and other aspects of their education. Older kids can state where they prefer to live. For younger children it comes down to the parents' own decision. Courts may get involved if circumstances are more complicated or there's a history of violence. 

When separating, a short-term arrangement makes everything easier (if it's possible).

Divorce can be stressful for everyone involved. But it can be particularly traumatic on small children. Because of this, it's best you get a short-term agreement as early as possible.

A short-term agreement isn't set in stone. Don't consider it the final word on your family custody arrangements. It's just a periodic decision, designed to protect your children.

You should consider: 

  • where children will live while you're separating
  • who will remain in the family home (in the meantime)
  • how much time will the children spend with each parent
  • and how you'll organise child support

A short-term child support agreement might look something like this: 

  • One parent remains in the family home while the other goes to stay with friends
  • The children remain with the parent at the family home, keeping their daily routine
  • The other parent spends weekends and three afternoons a week with the children

How your short-term parenting arrangement looks depends on the relationship you have with your spouse. Despite the stress, it's best that both parents cooperate. Your relationship may be ending but your children mean that you're still connected.

Couples unable to come to an agreement in a reasonable time frame should seek legal advice. Our solicitors can help you get an interim court order to provide a temporary arrangement.

Child parenting arrangements featuring young woman facing backwards walking down the hallway wearing a bright red shirt

Does my separation have to go through the courts?

Divorce and separation are stressful enough. Unless it's necessary, you probably don't want to be dragged through the courts. Our solicitors work to keep you family law matters out of the courtroom. (When reasonable and appropriate. If it needs to go through the courts, then so be it.)

There’s a few different options to help you come to a parenting arrangement - without court involvement:

  • mediation
  • negotiation
  • family dispute resolution
  • arbitration
  • collaborative law
  • child-inclusive processes.

What if I’ve been in a domestic abuse relationship?

Mediation is simply not appropriate if you or your children have been the victims of domestic violence.  Our family law solicitors are experienced in domestic violence cases. We know how important speed is in these situations and endeavour to work fast, with the courts, on your case. We're also always there for you to talk to or to answer your questions, making sure you have the legal advice and support you need.

It’s highly unusual for the courts to rule in favour of an equal parenting arrangement if there has been past experience with domestic violence. If you're facing financial difficulty you may be eligible for legal aid.

I’d like an apprehended domestic violence order

If you have experienced violence, threatening behaviour or verbal abuse at some point in your relationship, and fear that it will continue during your separation, we can help. An Apprehended Domestic Violence Order can be made on your behalf. Our solicitors will help you obtain the right order to help protect you and your family. Afraid of a former partner? Contact the police immediately.

What if my child custody case does end up in the courts?

Child Custody matters are dealt with through the Family Court, the Federal Circuit Court or the Local Court. It doesn’t matter whether you're married, de facto, same sex or adoptive parents–all matters relating to children fall under the same Commonwealth Family Law Act 1975.

What kind of orders is the court able to make?

Family Law courts used to echo with the words ‘custody’, ‘access’, and ‘guardianship’.  Today’s orders are both more practical and more specific. They include orders on:

  • Who a child will be living with
  • When a child should be spending time with the other parent
  • Which parent is responsible for different areas of a child’s upbringing
  • And what parents need to do to change or vary orders

Child`s best interest bullet point list featuring a closeup of a girls face wearing a cap

How does the court come to make these decisions?

Family Law courts focus on securing and maintaining what's in the best interests of the child. The court presumes shared custody (the equal split of time between both parents) is in the child's best interest.

A history of abuse, violence or erratic behaviour, however, will have a significant effect on any court's decision.

The court may also consider each parent's lifestyle and their personal relationship with the child. This may influence the court's final decision. Some of the things the court may consider are:

  • A parent’s ability to provide for their children financially and emotionally
  • An older child’s relationship with both parents
  • A child's desire to stay with a certain parent
  • A parent’s lifestyle and parenting history
  • The child’s right to engage with and to enjoy their cultural heritage
  • Any practical difficulties that may prohibit parents from being able to spend time with their children
  • Whether each parent agrees to talk to the other about any significant decisions affecting their children

Want more advice about parenting arrangements? Our family law solicitors are able to speak to you about your case. Fill out a contact form. Include your parenting arrangement questions and a lawyer will respond to you soon.