Making My Will - Give Custody of Children to Family Member?

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27 April 2014
I need some advice on what to do about my sons' father and custody of children.

While I was pregnant, he was very nasty. He did not want kids so he tried to force me to have an abortion. Even after I told him that having an abortion was not an option, he tried to force the issue firstly by offering to give me $10,000 to have it and when I refused, he said that he was going to take me to court and take my baby away and make sure I never saw him. Even though he didn't want him, he was just trying to bully me into what he wanted.

Now my beautiful little man is almost 5 moths old, his father has made no attempt to contact me or to see his son in over 3 1/2 months even though I let him visit whenever he likes, and he is not paying any child support.

I am worried about 3 things:
Firstly he is a very vindictive man and I am worried that he will try and use my son just to hurt me. Secondly his home is unfit for a child to be staying there and I would be concerned for the welfare of my child if he ever did decide that he wanted to be part of his life, and lastly I am in the process of doing my will and if something happens to me, I want to give custody of my son to one of my family members.

I am very stressed.


Well-Known Member
19 April 2014
Hi Kelly

Which State are you in? There are different Legal Aid offices in different States as well as Womens Legal Services Centres that could assist you.

If you can’t agree about parenting arrangements with the father of your child, then you can apply to the Family Court for a parenting order (Part VII Order). The Family Law Courts website sets out information in simple language about applying for a parenting order.

There’s a requirement that you attend dispute resolution and get a certificate confirming you attended before filing the forms for the parenting order. However, you can apply for an exemption from providing a certificate if the Family Court is satisfied that there are reasonable grounds to believe that:
  • there has been child abuse and/or family violence by a party
  • there is a risk of family violence by a party, and/or
  • there is a risk of child abuse if there were to be a delay in applying to the Court.
You may have grounds to say that there is a risk of family violence given what you've said about the child's father's behaviour towards you (trying to force you to get an abortion, threatening you, etc). Section 4AB of the Family Law Act says family violence means "violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful" and gives a list of examples of family violence (for example, repeated derogatory taunts). You'd need to write down specific examples to support your application.

Family Relationships Australia provide a free dispute resolution session and an Advice Line on 1800 050 321 or you can go to their site

For more information about filing an application with the Family Court, you can call the National Enquiry Centre on 1300 352 000 and they can talk you through the forms you need to fill out and the process. There are fees involved with filing the forms, but you can apply for a reduced fee if you hold a government concession card, you’ve been granted legal aid or you can demonstrate financial hardship.

If you’re someone who would like to understand the relevant part of the family law that affects you in more depth, you’re looking at Part VII of the Family Law Act.

In your Parenting Order, you can ask the court to make an order that deals with whom your child lives with if you pass away. (I imagine you're thinking a sibling of yours and/or your parents?) In terms of your will, I think (but I'm not 100% sure) that you can refer to the Parenting Order about who your child should live with in your wishes should anything happen to you. If you don't have an Parenting Order in place, then there's a risk that your child's father would take guardianship of your child as the surviving parent. The father of your child must comply with a Parenting Order.