Child custody (parenting arrangements) – What to do when you cannot agree

If you cannot reach agreement on parenting issues, there are a number of steps that need to be taken before you can go to court, including attending Family Dispute Resolution (FDR), a form of mediation.

FDR/Mediation has a very high success rate.  It is a very useful way for parents to discuss their different views and concerns and to reach an agreement or at least reduce the issues in dispute.   Although it is sometimes necessary for the Court to be involved, Court proceedings should be a last resort once all other avenues and options have been explored, and a genuine attempt to resolve things has been made.

The law requires various steps to be taken before going to court in parenting cases, including:

1. Provide the other parent with a copy of the Court’s “pre-action procedures” document

2. Make enquiries about dispute resolution services (i.e. FDR) and invite the other parent to attend mediation

3. Where it is safe to do so, both parties must cooperate and make a “genuine effort” to reach an agreement at FDR.  An example of where it may not be safe to engage in FDR is if there are domestic violence issues or if the case is urgent

4. If no agreement is reached, and one parent wants to start Court proceedings, that parent must provide the other parent with notice of their intention to start Court proceedings. The “notice” must:
   1. specify that they intend to commence Court proceedings

   2. set out a summary of the issues in dispute

   3. set out a genuine offer/proposal to resolve the issues and provide a timeframe for the other parent to respond to that offer/proposal (the timeframe must not be less than 14 days)

5. If the other parent does not agree to the offer/proposal, that parent must put forward their proposed offer/proposal and provide the other parent with not less than 14 days to respond

6. If an agreement is still not reached, then Court proceedings may be commenced, and this will include filing with the Court a “Genuine Steps Certificate” which confirms the pre-action procedures have been complied with (or reasons why they have not been) and sets out the steps the parents have taken to attempt to resolve their dispute

What if you do not follow the steps?

If you commence Court proceedings without having followed the Rules and steps described above, there may be serious consequences when you get to Court, including an Order being made that you pay the other parent’s costs, or your application could be significantly delayed, which may be detrimental to your case.

It is therefore vital that you ensure that you have taken the appropriate steps before going off to Court.  You should seek legal advice about the steps, and whether they apply to your situation, as each parenting situation is unique and requires specialised and tailored advice.