Legal Q&A: Can I get sole custody?
Your questions answered with Clarissa Rayward, Australia’s Happy Family Lawyer and CEO of the Brisbane Family Law Centre
Reader question: I don’t have a custody arrangement in place with my daughter’s father, I have no contact with him and I don’t know of his whereabouts. I’d be interested to know how I go about obtaining sole custody as I come across occasional challenges without his permission on things. For example, it took special approvals to get my daughter into day care. Sole Custody! It’s a phrase I hear a lot, which is interesting as in Australia, the word ‘custody’ has no legal meaning at all! When the Family Law Act began way back when, the terminology at that time did include the words ‘Custody’ and ‘Access’. If children were living mainly with you then you would have ‘custody’ and the other parent would have ‘access’. Later, these words were changed to ‘Residence’ and ‘Contact’ and now we say ‘Live with’ and ‘Spend time with’! (don’t despair it is just as confusing for us lawyers!).
So most of the people I meet that, like you, are solely caring for a child, don’t really want an Order for ‘live with’ (you sort of have that by default!). What they are really after is an Order that will enable them to carry out the things they need to do as parents for children, as you say, things like enrolling them in school, organising medical treatment and making other big decisions as they progress through life.
What you will need is an Order for ‘Sole Parental Responsibility’ which will give you the sole decision making power when it comes to big decisions for your daughter. That would mean that you are able to go ahead with things like school enrolments without the need to consult with or obtain the consent of her father.
An Order for Sole Parental Responsibility is not easy to achieve. The basic principle is that parents should have ‘Equal Shared Parental Responsibility’ for their children meaning that they each have a part to play in sharing decision making for significant matters in a child’s life.
When considering whether to make an Order for Sole Parental Responsibility a Court would consider what is best for your daughter – and again the Family Law Act sets out the matters to be considered in determining whether an Order is in the ‘best interests’ of a child. There are a number of things to consider and certainly the fact that her father has limited involvement in her life would be a relevant factor.
HOW DO I GET AN ORDER FOR SOLE PARENTAL RESPONSIBILITY?
You can obtain an Order for Sole Parental Responsibility by making an Application for Consent Orders to the Family Court. This would however require your daughter’s father to consent to the Order – in other words he must sign the necessary paperwork to have the Orders made, which I appreciate may be impossible given that you don’t know his whereabouts.
Alternatively, you can make an Application to the Family Law Courts for the Order to be made by a Judge. You would still need to try to locate the father, but the Court could assist with that through Orders that enable Departments such as the Department of Human Services (Centerlink and Child Support) to release the address information to the Court.
As with all parenting matters, it will be necessary for you to have attempted Family Dispute Resolution (mediation) prior to being able to commence an application in the Family Courts or alternatively, you need to satisfy the Court that mediation is not appropriate in your circumstances, i.e. You simply cannot locate the father to be able to organise a mediation. I would always recommend you meet with a Family Lawyer before starting any application in the Courts as commencing one can sometimes be a bit like opening Pandora’s Box. I have assisted many parents who thought they were filing a simple Court Application, only to discover that once the other parent became aware of proceedings, all sorts of things were up for discussion. A Court application really means you are placing your faith in the hands of a stranger and it can quickly become a complex process where Orders are suddenly being made for things you did not want and had not expected.
WHAT IF I DON’T APPLY FOR AN ORDER THEN?
In my experience the next challenge may arise when it comes to school enrolments. I have found the policies around enrolling children with only one parent’s express consent seems to vary school to school – some won’t enrol children without both parents completing the necessary forms and some will. So an option for you might be to let sleeping dogs to lie until you hit a road block and consider your legal options or a Court Application then.
Like many things in life there are pros and cons so take your time and explore all the legal options you can. Good luck!