Custody Settlements: Deciding Between Court or Negotiation

custody settlement

Reaching a mutually agreeable settlement can be challenging, and it requires both parties to be willing to work together and compromise.

In this article, we’ll provide some tips on how to reach a great custody settlement through mediation.

Definition of Custody Settlement

Custody settlements are legal contracts that detail the terms and conditions for the care and custody of a child or children whose parents are separated or divorced. The Family Law Act 1975 (Cth) and its accompanying regulations govern custody arrangements in Australia. 

Custody Settlement Through Court

Custody settlements can be reached through either negotiation or legal proceedings. Parents can create a parenting plan or consent order if they can reach an agreement through negotiation.

If the parents are unable to reach a custody agreement through negotiation, they may be required to go to court to have a judge decide. Typically, the court procedure for determining child custody involves the following steps:

  1. Filing an Application: One parent files an Initiating Application with the court, setting out the parenting arrangements they seek, and serves the other parent with a copy of the application.
  2. Participate in Mediation: Typically, the court will require the parents to participate in mediation to attempt to reach a custody settlement by agreement. If they are able to do so, then they can file Consent Orders which puts an end to the court process and litigation.
  3. Pre-Hearing: If the parents cannot reach an agreement through mediation, the parties will proceed to a pre-hearing, such as a directions hearing, to identify the disputed issues and attempt to narrow them.
  4. Hearing: If the matter proceeds to an interim or final hearing, each parent will present evidence and arguments to the judge, who will make a custody determination based on what is in the child’s best interests.

Also read: Impact of Living with a New Partner on Custody Cases

Custody Settlement Without Going to Court

A custody dispute can be one of the most emotionally draining and stressful experiences a person can endure. Mediation can be used to resolve custody disputes outside of the court system and to arrive at a custody arrangement that is beneficial for all parties, particularly the child.

However, reaching a resolution that is acceptable to both parties can be difficult and requires cooperation and compromise on both sides.

One of the most common issues we see is when parents are fixed in their positions and are not willing to accommodate the other parents schedule. It is important that parents work together in a child focused manner to ensure that the child has an opportunity to spend time quality time with both parents.

By adhering to these guidelines, you can increase your possibilities of reaching a custody settlement:

  1. Prepare for Mediation: Before attending mediation, take the time to gather any documents or information that may prove beneficial during the session. This may consist of financial statements, school reports, medical records, and any other relevant information.
  2. Keep the Best Interests of the Child in Mind: Remember that the best interests of the child should be the primary focus of any custody agreement. Try to maintain a focus on the child throughout the mediation process, and bear in mind that the objective is to create a plan that is in the child’s best interests, not the parents.
  3. Be Willing to Compromise: Mediation entails negotiation and compromise, so be willing to make concessions and compromise on certain issues to reach an agreement. This may involve being flexible regarding time-sharing arrangements or modifying the parenting plan to better meet the child’s requirements.
  4. Communicate Effectively: Effective communication is key to a successful mediation. Actively attend to the other party’s concerns and articulate your own with clarity and courtesy. Be receptive to hearing and considering the other side’s perspective, and attempt to find a solution that benefits both sides.
  5. Consider Creative Solutions: Sometimes, the best custody settlement may not fit neatly into the traditional custody arrangements. Be open to considering creative solutions, such as nesting arrangements (where the child remains in the family home, and the parents take turns living with the child), or shared custody arrangements (where the child spends equal time with both parents).
  6. Seek Professional Assistance: If you are struggling to reach an agreement through mediation, consider seeking the assistance of a professional mediator or a family lawyer who specialises in mediation. They can provide objective counsel and facilitate productive communication between you and the other party.


Whether reached through negotiation or litigation, custody settlement can provide children with a stable and predictable environment in which to flourish after a separation or divorce. If you are involved in a custody dispute, we recommend that you consult an experienced child custody lawyer to ensure that your rights and your child’s best interests are protected.

Director of Melbourne Family Lawyers, Hayder manages the practice and oversees the running of all of the files in the practice. Hayder has an astute eye for case strategy and running particularly complex matters in the family law system.

Leave a Comment

Your email address will not be published. Required fields are marked *

Share this to social media