What Happens When Parents Can’t Agree on Child Custody?

When parents separate or divorce, one of the most challenging aspects is determining child custody arrangements. In Australia, the term “custody” is no longer used in family law; instead, we refer to “parenting arrangements” or “parenting orders.” These arrangements encompass where the child will live, how much time they will spend with each parent, and how major decisions about the child’s life will be made.

Ideally, parents should work together to create a parenting plan that serves the best interests of their children. However, reality often presents a more complex scenario. When parents cannot reach an agreement, the situation can become stressful and emotionally charged. 

This blog will explore what happens when parents can’t agree on child custody, the legal processes involved, and the potential outcomes.

The Importance of the Child’s Best Interests

Before getting into the specifics of disagreements and legal processes, it’s crucial to understand the fundamental principle that guides all decisions related to children in Australian family law: the best interests of the child. This principle is enshrined in the Family Law Act 1975 and serves as the cornerstone for all parenting decisions, whether made by parents themselves or by the courts.

The Act outlines several factors that contribute to determining a child’s best interests, including:

1. The benefit of the child having a meaningful relationship with both parents
2. The need to protect the child from physical or psychological harm
3. The child’s views, depending on their maturity and level of understanding
4. The child’s relationship with each parent and other significant people
5. The capacity of each parent to provide for the child’s needs

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Initial Steps: Attempting to Reach an Agreement

When parents disagree on custody arrangements, the first step is to attempt to reach an agreement outside of court. This process typically involves the following stages:

1. Direct Communication

Parents are encouraged to discuss their concerns and try to find common ground. This can be done informally or through more structured discussions.

2. Family Dispute Resolution (FDR)

If direct communication fails, the next step is usually Family Dispute Resolution. This is a formal mediation process facilitated by a qualified FDR practitioner. The goal is to help parents work through their disagreements and reach a mutually acceptable parenting plan.

FDR is generally a mandatory step before applying to the court for parenting orders, except in cases involving family violence or child abuse.

3. Developing a Parenting Plan

If parents can reach an agreement through FDR or other means, they can create a parenting plan. This is a written agreement that outlines the parenting arrangements. While not legally binding, it can be a useful tool for managing co-parenting responsibilities.

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When Agreement Remains Elusive: The Legal Process

If parents cannot reach an agreement through FDR or other means, they may need to turn to the family law courts. Here’s what this process typically involves:

1. Obtaining a Section 60I Certificate

Before applying to the court, parents must usually obtain a certificate from an FDR practitioner under section 60I of the Family Law Act. This certificate confirms that they have made a genuine effort to resolve their dispute through FDR.

2. Filing an Application with the Court

Once the Section 60I certificate is obtained, a parent can file an application with either the Family Court of Australia or the Federal Circuit Court. The choice of court depends on the complexity of the case.

3. Court Proceedings

The court process typically involves several stages:

1. First court event: This is usually a less formal hearing where the judge assesses the issues and may make interim orders if necessary.
2. Child Impact Report: In some cases, the court may order a Child Impact Report. This involves a family consultant interviewing the parents, children, and other relevant parties to provide the court with an independent assessment of the family situation.
3. Hearings and evidence: Both parents will have the opportunity to present evidence and arguments to support their proposed parenting arrangements.
4. Final orders: After considering all evidence and submissions, the judge will make final parenting orders.

Factors Considered by the Court

When making parenting orders, the court considers a wide range of factors, all aimed at determining what arrangement will be in the best interests of the child. Some key considerations include:

1. The child’s relationship with each parent and other significant people
2. The effect of any changes to the child’s circumstances
3. The capacity of each parent to provide for the child’s needs
4. Any family violence issues
5. The child’s views, if appropriate, given their age and maturity

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Types of Parenting Orders

The court can make various types of parenting orders, depending on the circumstances of the case. These may include:

1. Live With Orders

These orders determine which parent the child will primarily live with.

2. Spend Time With Orders

These orders outline how much time the child will spend with the non-resident parent1.

3. Parental Responsibility Orders

These orders determine how major decisions about the child’s life (such as education, health, and religion) will be made. The court generally presumes that equal shared parental responsibility is in the best interests of the child unless there are reasons to believe otherwise.

4. Specific Issues Orders

These orders can cover particular aspects of the child’s care, welfare, and development.

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Enforcement of Parenting Orders

Once the court has made parenting orders, both parents are legally obligated to comply with them. If one parent breaches the orders, the other parent can take steps to enforce them. This may involve:

1. Attending family dispute resolution to address the issues
2. Filing a contravention application with the court

The court takes breaches of parenting orders seriously and has various powers to address non-compliance, including imposing fines, ordering make-up time, or even imprisonment in severe cases.

The Impact of Family Violence or Child Abuse

In cases where there are allegations of family violence or child abuse, the process can be different. The safety of the child is the court’s primary concern, and it may:

1. Dispense with the requirement for FDR
2. Make interim orders to protect the child
3. Order supervised contact or no contact with the alleged perpetrator until the allegations are investigated

Living with Parenting Orders

Once parenting orders are in place, both parents need to adjust to the new arrangements. This can be challenging, but it’s important to remember that the orders are designed to serve the best interests of the child. Some tips for managing this transition include:

• Maintain open communication with the other parent
• Be flexible when unexpected situations arise
• Keep the focus on the child’s needs and well-being
• Seek support if you’re struggling to cope with the new arrangements

The Possibility of Changing Parenting Orders

It’s important to note that parenting orders are not set in stone. As children grow and circumstances change, it may be necessary to modify the orders. This can be done by:

• Reaching a new agreement with the other parent and applying for consent orders
• Applying to the court for a variation of the orders if agreement can’t be reached

However, the court will only change existing orders if there has been a significant change in circumstances since the original orders were made.

The Role of Legal Representation

Navigating the family law system can be complex and emotionally challenging. While it’s possible to represent yourself in parenting matters, many parents find it beneficial to seek legal advice or representation. A family lawyer can:

1. Explain your rights and obligations
2. Help you understand the likely outcomes of your case
3. Assist in negotiating with the other parent
4. Represent you in court proceedings if necessary

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Prioritising the Child’s Wellbeing

When parents can’t agree on child custody arrangements, the process can be stressful and emotionally taxing. However, it’s crucial to remember that the ultimate goal is to create an arrangement that serves the best interests of the child.

Whether through negotiation, mediation, or court orders, the focus should always be on providing a stable, loving environment for the child, maintaining their relationships with both parents and protecting them from harm.

While disagreements about parenting arrangements are common, with the right approach and support, it’s possible to navigate this challenging process and create a positive co-parenting relationship for the benefit of your children.

How Nardi Lawyers Can Help

At Nardi Lawyers, we understand the complexities and emotional challenges involved in parenting disputes. Our team of experienced family lawyers is dedicated to helping parents navigate these difficult situations with compassion and expertise.

We can assist you at every stage of the process, from initial negotiations and Family Dispute Resolution to court proceedings if necessary. Our services include:

1. Providing clear, practical advice on your rights and obligations
2. Assisting in the development of parenting plans
3. Representing you in Family Dispute Resolution
4. Preparing and filing court applications
5. Advocating for you in court proceedings
6. Helping you understand and comply with parenting orders

Our goal is to help you achieve the best possible outcome for your children while minimising conflict and stress. We strive to resolve disputes efficiently and cost-effectively, always keeping the best interests of your children at the forefront.
If you’re struggling with a parenting dispute or need advice on child custody matters, don’t hesitate to reach out. Contact us today to schedule a consultation with one of our experienced family lawyers