How To Get Custody Of My Children

Step 1: Try To Reach An Agreement

For some, this will be impossible but the first step is to negotiate with your former partner to see if there is any mutual ground and ascertain what their intentions are for the care of the children. You can do this yourself, through a lawyer or through mediation. Prior to applying to court, parties are required to attempt Family Dispute Resolution and make a genuine effort to reach an agreement, except in certain circumstances like when there is domestic violence, child abuse or urgent circumstances. If get an agreement, you should finalise that into a binding document have a look at our How-To Guide, How To Get A Consent Order.

For more information on this process, check out our FAQs, How Can I Get Custody Of My Child Without Going To Court?

If you are unable to reach an agreement after mediation, your next option is to apply to the Federal Circuit Court or Family Court. You will receive a 60I Certificate from your mediator which you can then use to make application to the court.

Step 2: Gather Your Evidence

When you are applying to the court, you need to remember that the Judge hearing your case will know nothing about you or your relationship with your children so you need to explain everything to them. Keep a diary of everything that is, and has been, happening relating to your children, including any times you or the other party has had or attempted contact with the children. If relevant you will need to supply the court with school reports, counsellor reports, witness statements, text messages, emails, recordings and photographs.

When preparing your material for the court, you will need to explain the history of your relationship and everything that has happened since the children's birth. You can prepare this material yourself through the Initiating Application for Parenting Orders here. You will need to prepare an Initiating Application, an Affidavit, and a Notice of Risk. When writing your affidavit, you should also consider what you think the other party will say and address that in your material so you can present your best case to the court.

Step 3: Get Legal Advice

It is important that you speak with a good family solicitor at least once to make sure that you doing the right things and on the right track. It is a good idea to have a lawyer look over your documents before applying to the court, if you draft them yourself, to ensure that you have covered everything and are putting yourself in the best position possible. One of the most common questions we are asked is how domestic violence effects parenting proceedings and you can have a read of our article, How does the Family Court deal with domestic violence? to answer that question.

Arrange a free telephone consultation for some legal advice on your case here -  obligation free.

Step 4: Appear In Court

On your first court appearance, there are two things that can happen the court will be prepared to hear an interim application or they will adjourn your matter to another day. If the court hears an interim application, this means that they will consider the material that both parties have filed, hear your arguments and make a decision about where the child lives and how the child spends time with the other parent on a temporary basis.

Once you have this temporary parenting order, the matter will then proceed through the court proceedings. The court can appoint an Independent Children's Lawyer (a lawyer to represent the best interests of the child) and they often provide guidance about what should happen. The court also sometimes arrange independent consultants to provide reports to the court on what the child's care arrangements should look like. Have a look at our FAQs, What is a Family Report? for more information on that.

Step 5: The Final Hearing

If you proceed through the court system and the other party still will not agree to the custody arrangements that you think are best for your children, your matter will go to a final hearing. This is when you present all your evidence to the Judge, as does the other side, and the Judge will give you both the opportunity to cross-examine the other party except when there is domestic violence. From the end of 2019, unrepresented parties will be unable to cross-examine each other in certain circumstances of domestic violence. Have a look at this information sheet to see if this applies to you.

After your final hearing, the Judge will deliver their decision which will then become a court order. If you do not agree with the decision, you have 28 days to lodge an appeal and have the matter re-heard. You can only do this in certain circumstances so you should obtain legal advice if you wish to appeal a decision of the court.

We are Family Court solicitors who are experienced in providing divorce and separation legal advice in complicated and high risk parenting disputes. We have many years experience in court advocacy and dealing with matters involving complicated parenting disputes including matters that require several Family Reports and involve Independent Children's Lawyers.

Contact us for more information or to book a free legal advice session to find out your options.

This information does not constitute legal advice. You should consult with a lawyer to obtain independent legal advice relevant to your situation.

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