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

Lift Magazine - - Contents -

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!

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