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NSW Family Law Ideas to Get Custody of Children?

Discussion in 'Family Law Forum' started by WayneAdo, 13 March 2016.

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  1. WayneAdo

    WayneAdo Member

    13 March 2016
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    I have recently learnt that my wife has been having an affair.

    We worked through this, but she has now told me that she is only with me because it makes everyone else happy but she is not. We have 2 children and 2 foster children and both work full time.

    I would like to get parental custody of children of all 4 of them as I am the one who keeps the house running, sport, school daycare, etc., and her job requires a lot of interstate travel. Whilst she earns more than me, I am the one who is always there for anything to do with the kids and she is not.

    I don't know how this works and I guess being a father we never get the rights to the kids but I have a lot of documented evidence that proves I am the one who is the constant in the boys life daily and do the school drop off and pick up.

    Can anyone help with family law ideas?
  2. AllForHer

    AllForHer Well-Known Member

    23 July 2014
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    First, the term used in Australia is 'parental responsibility' and 'time spent with', not custody.

    Second, anything goes when there are no parenting orders in place, so if you and your ex can reach agreement about who the children live with, then that's the best possible outcome because going to court takes the choices about what happens with your kids out of yours and your ex's hands.

    Third, if the court were to decide, parental responsibility (which is the decision-making aspect of it) would be equally shared between your ex and yourself as a presumption under law. That means it can't be removed unless you can successfully rebut the presumption and get an order from the court granting you sole parental responsibility - which never, ever happens these days.

    Fourth, if a court were to make a determination about care arrangements for the kids, it would have to make them according to what it believes is in the best interests of the children, in accordance with section 60CC of the Family Law Act. Where one of the parties is seeking an order for equal time, and if the presumption of shared parental responsibility is upheld, it must first consider if an order for equal time is in the children's best interests.

    If an order for equal time is decidedly not in the children's best interests, then it must consider an order for substantial and significant time, which is a combination of week days, weekends, holiday time and special occasions.

    Predicting an outcome, however, is impossible - you might end up with residency of the kids and they might spend five nights a fortnight with mum, or you might up seeing the kids once a fortnight at a contact centre. This is why it's better for you and the mother to try and negotiate care arrangements between you without court intervention, rather than having the court decide for you.

    The only reason parents ever go to court for parenting matters is when they are being unreasonable and using the children to hurt their ex. Don't do that. Kids need both parents, even if the parents don't like each other anymore.

    So your first step is to organise a family dispute resolution conference with Legal Aid or Relationships Australia so you and your ex can meet with a neutral third party and try and negotiate a parenting plan, which is an agreement between you and the kids' care arrangements. A parenting plan isn't legally binding, but you can have it made into consent orders if you wish, which will give the court powers to act in the event that either party contravenes the agreement.

    If you're unable to reach an agreement, then you will be given a s60I certificate which shows you've tried to settle your dispute through an alternative method to court. The certificate is mandatory before you can file for parenting orders with the court, but once you have it, you can file an initiating application with the court, which must include the parenting orders you are seeking as well as a supporting affidavit of evidence about why the orders you are seeking are in the best interests of the children.

    Hope this helps.

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