16 Dec TO ALL THE SINGLE MUMS OR DADS OUT THERE – YOU DON’T NECESSARILY NEED A “CUSTODY ORDER”

By Tina Dawson, Partner, Fedorov Family Lawyers

Over the years working as a family lawyer, I get calls from single mums or dads and it goes something like this “Hi Tina, I am looking for some advice about getting a custody order for my child. His father/mother has never been around or hasn’t been around for some time or isn’t spending much time with my child.”

My response is this – “You don’t need a custody order. And they aren’t called custody orders anymore anyway lol.”

You see, the Courts have long changed the language of child custody such that when Court orders are made for parenting arrangements for a child, it’s referred to as “live with” and “spend time with” or “communicate with”. For example, a Court order that a child reside primarily with the mother will state “That the child [INSERT NAME] shall live with the mother” and “spend time with the father”. Or vice versa.

But putting aside the change in terminology, the key point to be made is that if you are a single parent and the other parent has disappeared from the child’s life or isn’t making a real effort to be a part of their life – you don’t need to get a Court order that says the child is in your sole care.

The fact of the matter is – the child is in your sole care. You are recognised as the child’s sole or parental guardian with government agencies, schools, health care providers etc. You don’t need a Court order to prove that.

Furthermore, to get a Court order reflecting that the child is living with you (in effect, a custody order) and that you have sole parental responsibility for that child, there is a lot of time, effort and expense to achieve that goal. Firstly, you have to participate in compulsory mediation as a first step before starting Court proceedings. That would mean inviting the other parent of the child to mediation to discuss the fact that you want sole care and responsibility for the child.

And therein lies the next issue – why would you set about trying to locate that parent and then invite them to mediation to discuss parenting arrangements when they have been an absent parent anyway! You are opening up the doorway for them to come and seek live/time with the child that they haven’t been pursuing for themselves.

I always advise in these circumstances that it is all best left alone.

Even if the absent parent did appear at some stage, even if they decided they wanted to go to the child’s school and take the child – no Court order is going to prevent that from happening. Even if you had a Court order for sole care and responsibility for the child, if the other parent doesn’t willingly return the child to you then you still have to seek a Court’s assistance to get the Police to retrieve the child for you from the other parent (ie a recovery order).

Equally, if you have no Court order, but the child has been living primarily with you then if the Court can be satisfied that the child has been living with you to the exclusion of the other parent then a Court will still likely grant a recovery order for the child to be returned to you. That usually prompts a discussion between the parents as to what, if any, parenting arrangements might occur after the child is recovered into your care.

So, the point I make is that if a child is in your sole care you don’t have to go and get a Court order to prove that. If the other parent wants to pursue live with or time with the child at some point, then let them take the necessary steps to do so. They will have to invite you to mediation as the first step (except in cases of urgency or if a child is at risk). That’s when you come and see us to give you further advice.

For further advice on this and other family law matters, contact Tina aon 07 5667 2970 or tina@fedfamlaw.com.au

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