Children have a right to have a meaningful and substantial relationship with both parents. This is embodied in the Family Law Act 1975 (Cth) on file for contact, which seeks to reflect the principles of the Convention of the Rights of the Child.
Re-establishing Contact with Your Child
If you have not seen your child in many years, and wish to take up the opportunity to spend time with them, the following options are available:
- Engage in “pre-action procedures”, being Mediation or alternate dispute resolution as a first step to ascertaining whether the other parent is willing to facilitate time including potentially obtaining Orders for time by consent or entering into a parenting plan; and/or
- Commence Court proceedings by filing an Initiating Application with the Federal Circuit and Family Court of Australia to seek relief from the Court in the form of enforceable parenting orders.
Mandatory Pre-Action Procedures
It is mandatory pursuant to the Federal Circuit and Family Court of Australia Rules (Family Law) 2021 (Cth) to engage in pre-action procedures, save as in a limited number of scenarios, including:
- Where the application is urgent;
- Where there is a history of family violence; and/or
- Where it is otherwise unsafe to do so.
What Is a Section 60I Certificate?
If you have engaged in pre-action procedures, and were unsuccessful, you will receive a 60I certificate, wherein a Dispute Resolution Practitioner will verify whether you have or have not engaged in dispute resolution prior to commencing court proceedings. That may include circumstances where, for example, you invited the other party to attend Mediation however, they failed to attend. It is mandatory to include a 60I certificate as part of any court proceedings that you commence to demonstrate that you took genuine steps to resolve your dispute before choosing to litigate your matter.
Initiating Court Proceedings for Parenting Orders
When you commence court proceedings, you are able to identify in your initiating application what time you seek that your child spend with you. The Court will analyse your application primarily by reference to section 60CC of the Family Law Act 1975 (Cth). This section encompasses the primary and additional considerations that the Court is required to consider. Additionally, at all times, the Court’s paramount consideration is ensuring that any parenting Order is in the best interests of the child (see section 60CA of the Family Law Act 1975 (Cth)).
In the case of Pitken & Hendry [2008] FamCA 186, the Court said: “The fact-finding exercise required by s60CC is directed towards ultimate findings about best interests. Those findings inform a number of different statutory requirements, including ultimate findings about parental responsibility and quantity of time…All parenting cases require precise proposals by the parties…The proposals are (or should be) the expression of each party’s assessment of their child’s best interests.The Court is not bound by the parties’ proposals. Where the evidence points to an alternative being in the best interest of the children, orders should be crafted by the court accordingly.”
Balancing Relationship with Protection from Harm
In considering the primary considerations, the Court is required to balance the desirability of children having a meaningful and substantial relationship with both parents against the need to protect children from domestic violence and/or abuse. Parties will be required to file a Notice of Child Abuse, Family Violence or Risk document which sets out that party’s concerns as to facilitating time with the other parent. The Court considers this as part of its assessment of whether to facilitate time.
For example, if there was previously an Apprehended Domestic Violence Order issued against a parent, or a history of family violence, the Court may form the view that that person would pose an unacceptable risk of harm to the child and, accordingly, may order that no time be facilitated or that time be facilitated on a supervised basis to mitigate any risk of harm being posed to the child (see section 60CG of the Family Law Act 1975 (Cth)).
Use of Independent Material in Assessing Risk
In conducting this balancing exercise, the Court will also consider independent material produced by government bodies such as the NSW Police and the Department of Communities and Justice to ascertain whether any welfare complaints have been made in relation to the subject child of the proceedings or whether any parent or related person has a criminal history that could impact upon the welfare of the child. If you believe that your prospects of spending time with your child may be affected by historic or present matters falling within the above category, you should obtain appropriately tailored legal advice to your specific circumstances.
Mental Health, Addiction, and Psychological Impact
Additionally, in assessing risk as contrasted with the benefit to the child of reinstating his/her relationship with you, the Court will consider factors such as any mental health issues or drug and alcohol abuse or addiction. Other factors that the Court will consider in assessing risk include whether reinstating time between you and your child could have the potential of causing irreparable psychological harm to your child based on the length of time that you have not been present and participant in your child’s life. The primary considerations set out above do not, of themselves, mandate that time cannot recommence between a parent and child merely because risk factors may exist however, they are a guide as to how the Court considers applications in accordance with the primary considerations in section 60CC of the Family Law Act 1975 (Cth). It is noted that Courts have wide discretion in determining matters on a final basis.
Practical Considerations and Capacity to Parent
The Court must also consider the additional considerations set out in section 60CC of the Family Law Act 1975 (Cth). Those factors set out matters such as the practicality of facilitating time, for example, whether the parents live relatively close to each other such that a routine can be set in place for the child. Obviously, if the parties live interstate, the most practical regime may potentially be for the child to spend time with the non-resident parent during school holidays only with or without occasional weekend time during school terms. Other factors to consider are your capacity to provide appropriate facilities and care for your child if time were to recommence, including appropriate residential arrangements, educational facilities and supervision taking into account factors such as your employment. Additionally, you may wish to reflect upon whether you pay child support, noting that it is indicative of your capacity to financially support your child.
The Child’s Views and Wishes on File for Contact
The Court will also consider factors such as the child’s age and any views that the child has expressed. Section 60CD of the Family Law Act 1975 (Cth) states that the Court is required to also consider any views expressed by the child as to parenting arrangements. The Court may inform itself of such by way of obtaining an expert report. Generally, the older the child, the more mature they tend to be and greater weight tends to be allocated to their wishes and desires. For example, if your child is a teenager and indicates that they do not wish to spend any time with you, the Court would give that view serious weight.
Importance of Seeking Legal Advice
Having said that, it is not determinative of the matter and the Court may still order time between you and your child. You should obtain independent legal advice as to the prospects and strength of your application prior to commencing any proceedings in Court as there can be serious repercussions and consequences, including costs consequences, for filing an application lacking in merit.
To Sum Up
Please note that while the above information is accurate at the time of writing, significant reforms to the Family Law Act 1975 (Cth) came into effect on 10 June 2025, under the Family Law Amendment Act 2024. These reforms substantially impact various aspects of family law, including parenting applications, property settlements, and case management procedures. Notably, they include the recognition of the economic impact of family violence in property division, a legislative framework for determining ownership of companion animals, and changes to divorce and court processes.
If you’re considering reconnecting with your child or need guidance to file for contact, navigating the recent changes to family law. Contact Michael Vassili Lawyers for trusted, up-to-date legal advice tailored to your unique circumstances.
