General Legal Matters - Information Pages

Electorate Officers and the Law

Family Disputes

The Family Court can make binding orders following a trial, or if parties seeking an order come to a negotiated outcome.

Children

Generally children live with one parent – this is called residence (previously custody) and the other parent sees them on a regular basis. The amount the other parent sees the children (their contact) can be agreed between the parties, or if the Court is asked to decide, is generally something along the lines of every second weekend, half school holidays and other days (e.g. Father’s day, Mother’s day, kid’s birthdays, parent’s birthdays, Christmas, etc.) as may be agreed between the parties. Generally, the more detailed an order is, the better.

If one parent wishes to relocate to somewhere which makes contact by the other parent difficult or impossible, then that other parent can apply to stop this relocation taking place. This won’t apply to just a move to another suburb, but maybe to a remote part of the state, another state, or even another country. The reasons for the potential relocation can be examined by the court, and it has been held that employment in another state, being with immediate family and closeness to medical facilities have been reason to allow a relocation.

However, moving with a perceived intention to simply prevent the other parties contact has been held insufficient grounds to allow a relocation.

The touchstone for any Court proceedings is the best interests of the children.

If the parties have a situation they have worked out themselves or which has been running successfully for some time, then they may wish to have a Court order done which will bind both of them to their arrangement. This is a Consent Order, and kits are available from the Family Court or from the Family Court website (www.familycourt.gov.au) to enable them to make an application for the Family court to “seal” or make official their arrangement.

A Consent order will bind both parties who will sign the application, each page of the proposed order (the “minutes of order”) and have their signatures separately witnessed.

A Consent Order may be for a situation where parents have shared residence of their children, but the court itself will not usually order this to take place, as having to move the residence of the children regularly is not seen as being in their best interests, although if this is a long-standing arrangement, the Court may order that it continue.

A Court Order may be interim that is, an order made to apply until a certain date, (usually the next Court hearing date), or final - often following a trial, or when an outcome is reached one way or another during the course of proceedings.

If an order is a final order, it does not necessarily mean that it’s irrevocably set that way. An application, usually with an affidavit to explain what’s happened since the final order was made may be done and submitted to the Court registry.

A date is then set, by which time the other party will need to either formally reply to the application or turn up on the day, with legal representation. A final order usually won’t be made on the day, but if some course of action is agreed on by the applicant and respondent, a consent order may be given by the Court, or an interim order to preserve what status quo there is while other issues are worked out.

When any court proceedings are begun, both parties will firstly be ordered to attend mediation (or provide proof of where they have already), to see if there is any common ground that may lead to the parties to come to realise an outcome which may be made into a court order.

Parties may attend mediation voluntarily prior to court , and a Consent Order may be the outcome from these sessions.

For one parent to prevent the other parent having contact with the children, pretty drastic things will have to be proven: drug-taking, alcoholism, paedophilia, inappropriate living conditions, or at least activity not in the children’s best interests will have to be proven, although consistent and continual disregard of orders to the extent of contempt of Court can mean suspension of contact.

Possibly if one parent has just not been on the scene – not in the children’s lives – then the other parent may insist on a period of supervised contact while the children get used to this other person.

Should one party make an application to the Court for an order and the other party contests the outcome sought, then the Court will seek the other party’s side of the story. This is done by way of answering documents and an affidavit. Once both parties have submitted their documents, issues in contention are isolated. Any common ground between the parties is used as a base to build upon in an attempt for the parties to come to an agreement between themselves.

There are numerous opportunities on the way to trial for parties to come to consent. A trial can be a very long way in the future and also be expensive and emotionally devastating. Anyone contemplating court action is well advised to look to working thing out themselves, with the assistance of court mediation, as an outcome reached between parties is better than one imposed by the court.

Back to top

Back to General Legal Matters