Parenting and Child Custody Disputes

The court has moved away from the phrase 'custody' of the children to discussing living or contact arrangements. There are many different ways that a parenting arrangement can be structured and it depends on the circumstances of each case. What is best for your children might not be best for another family so it is important to structure any parenting arrangements in accordance with what works for your family.

Domestic and family violence may play a role in your separation which makes co-parenting children much more difficult. This adds another complication to the separation process and can make thinking about parenting arrangements extremely stressful. It is possible to continue with parenting negotiations while domestic violence proceedings are on-going however both parties need to ensure that they comply with any orders that are in place and think about how their actions impact their children's wellbeing.

You can negotiate with your former partner yourself or you can arrange for a lawyer to undertake those discussions for you. You need to think about what would work best for your children but also what is practical for all parties when taking into account work and other commitments. If you are unable to work arrangements between yourselves, you can begin the process to have someone else assist you.

The Family Law Act 1975 (Cth) is the legislation which covers parenting and property disputes across Australia. The primary focus of the law is to provide for children to have a meaningful relationship with their parents, and other loved ones, while ensuring that they are safe from harm. A meaningful relationship can mean many different things depending on the circumstances of the case. The law also outlines many considerations that the court must take into account when making a decision and it depends on each individual case as to how it will be decided.

The legislation requires that parties attend a Family Dispute Resolution Conference, commonly known as mediation, and make a genuine effort to reach an agreement prior to lodging an application with the court. There are certain circumstances where parties are exempt from attending mediation and you should check with a lawyer to see if you fall into one of these categories. If you participate in mediation, you will receive what is called a '60I' certificate and this enables you to apply to the court. If you reach an agreement, you are able to finalise that officially and legally through Consent Orders which are sent to the court for filing. You may also agree to a parenting plan, which is not legally enforceable, but can still be considered by the courts if there is an issue in the future. You do not have to draft a written agreement but it is always useful to put something on paper for both parties to understand what the arrangements are.

If you cannot reach an agreement outside of court, then you can apply to the Federal Circuit Court or Family Court to have a judge assist you to reach an agreement or make the decision for you. The court process can be lengthy, and costly, so you need to receive competent legal advice to ensure that it is the best option for your situation.

You can make an application to the court for a recovery or a location order. A recovery order is an order of the court requiring the return of a child or children to their previous parent or location. If the person refuses to comply, the court can order the Federal Police to assist in the removal of the child. An order that is commonly made with recovery orders is a location order this is an order to Governmental agencies to reveal the location of a child.

If your former partner, or any other relevant person, has removed your child from your care without consent then you may be able to apply for a recovery order. Even if you do not have current court order, you may be able to apply to the court for the urgent return of your child, depending on the circumstances. The key to recovery orders is to act quickly. The longer you delay the application, the less likely it is that you will be successful.

When you have reached a Consent Order or the court has made an order in relation to parenting arrangements, you then have a legal document which both parties are required to abide by. Unfortunately that does not always happen and there are times when people 'breach' court orders. If the other party is not obeying an order of the court, you are able to lodge an application to the court to require them to comply. This is known as a contravention application. The court has extensive powers in relation to contravention applications and can fine someone, change orders or even sentence someone to imprisonment if they refuse to follow the court order.

If you are contravening a court order but have a reasonable excuse then you may not be subject to any sanctions. When you are the respondent in an application for contravention, the applicant must prove to the court that you have breached the orders without reasonable excuse. You will be served with the alleged contraventions and will have the opportunity to respond. The court will then decide whether to convict you of the contravention and what your sentence will be, if any.