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Child Custody Under Family Law in Australia

During separation or divorce, the welfare of children and who has custody, is one of the most important decisions you need to make. When parents of a child under the age of 18 separate, each parent shares responsibility for the welfare and financial support of their child, regardless of the relationship status of the parents.

Child custody arrangements should be designed with the best interests of the child in mind, and if you and your child’s other parent are unable to come to an agreement, the court will consider a number of factors when granting child custody and child support. This article outlines what you need to know when making decisions about child custody.

Child Custody Laws in Australia

Child custody law in Australia falls under the Family Law Act 1975. The Act clearly outlines that child custody considers what is in the best interests of the child, and that parents have responsibilities to their child, not rights. This means, as a parent, you are required to prioritise the interests of your child over your own. The Act is also gender neutral, meaning there is no presumption made about parenting roles.

Child custody is referred to by law as ‘parental responsibility’. There is a statutory presumption that both parents will share equal parental responsibility in caring for the child. This means both parents have a role in making decisions that impact the long-term situation for the child, such as where they will live, what school they attend, religious upbringing and major medical decisions. Shared responsibility will look different in each family situation, and time spent with each parent and the role each plays in the child’s life are very personal, individual decisions.

The presumption of shared responsibility may be disregarded by the court if it is not in the best interests of the child.

Considerations of the Court When Determining Child Custody

There are two main things the court considers when deciding who is awarded custody of a child:

  • a child’s right to benefit from both of their parents having meaningful involvement in their life; and

  • the need to protect the child from being exposed to harm, abuse or neglect.

This means if domestic violence or any form of abuse or neglect are present, the court is most concerned with protecting the child, and will therefore be unlikely to consider shared custody in the child’s best interests.

Once the main considerations are addressed, the court will consider a number of other factors to determine what is in the best interests of the child. These may include:

  • views expressed by the child;

  • the relationship the child has with each parent or guardian;

  • the willingness of each parent to encourage and help facilitate the child’s relationship with the other parent;

  • the parents’ ability to fulfil the child’s needs.

A court may determine it is in the best interests of the child to remove parental responsibility from one or both parents, and it may also assign parental responsibility to another legal guardian.

Applying For Full Custody of a Child in Australia

The law presumes parental responsibility should be shared equally unless it is found this is not in the best interests of the child, and there are some cases where full custody is granted to one parent or guardian.

In some cases, a parent may wish to get full custody of a child because they disagree with their ex partner or are unable to have an amicable relationship with them and are afraid they might lose custody altogether.

Firstly, it’s important to understand that unless there are extraordinarily unusual circumstances, this is rarely how parenting arrangements work. If your case is heard by the court, the court will consider each parents behaviour toward the child and each other, so unless there is violence, abuse or similar present, in most cases both parents would be granted shared custody.

Secondly, shared custody does not equate to shared time spent with your child, so it is possible and quite common to have shared custody of a child who lives with one parent 100% of the time. For more information on time spent with children, see the frequently asked questions section below. The court generally does not consider it in the child’s best interests to spend time with one parent only.

If you do wish to apply for full custody of your child, contact our experienced child custody lawyers who can step you through the process, how to apply to the court and what your options are.

A Child Custody Case Study

Rebuttal of presumption for shared parental responsibility:

A recent Family Court case provided a rebuttal to the presumption of shared parental responsibility. It was a mother and father whose relationship had broken down so far that they could not reach joint decisions relating to major long-term issues in respect of their children.

The court found that it was not in the children’s best interests for the parents to share equal parental responsibility. In this case, sole parental responsibility was given to the father, who the children were to live with. The father was to notify the mother before making any major long-term decisions for the children, but it was his sole responsibility to make them.

Frequently Asked Questions

Is it necessary to go to court to settle a child custody dispute?

No, if you and your ex partner are able to reach an agreement on who has custody of your child, what time will be spent with the child and any child support required, you do not have to go to court. You can make a parenting agreement with the help of an experienced family lawyer, or you can obtain ‘consent orders’ for parenting orders which are approved by a court.

If you are unsure how to make arrangements with the other parent of your child, contact us today to discuss your options. Our experienced family lawyers are able to guide you through the process, liaise with your ex-partner or their lawyer, and obtain consent orders for you.

Is child custody usually split 50/50?

Under Australian Family Law, every parent has a responsibility to the wellbeing and financial support of their child. This applies in all situations, regardless of whether the parents are married, in a relationship, separated, never in a relationship, or otherwise. This allows each parent to make decisions about their child, together or individually.

The Family Law Act 1975 makes a presumption that custody, meaning responsibility for the welfare and financial support of your child, is split equally between both parents. This means that you and your child’s other parent would share equal responsibility for and play a role in making decisions about your child’s life and future, such as where they will live, what school they will attend, or any religious observance.

This presumption only applies if this is in the best interest of the child. That means that if the court finds it is in the child’s best interest that one parent makes these decisions only, custody would likely not be split 50/50. This usually occurs in circumstances where there is domestic violence, abuse, or neglect, and therefore the court will rule that the child’s welfare may be compromised.

Does equal custody mean equal time?

Under Australian Law, ‘access’ to your child is referred to as to ‘spend time’ with your child. Shared parental responsibility - ie. child custody - differs from equal time spent. This means that while you may share the responsibility of child support 50/50, this doesn’t automatically mean you share the time spent with your child 50/50.

You and your child’s other parent will spend equal time with your child only if:

  • you both agree this works best for your child and each of you; or

  • the court finds that equal time is in the best interest of the child and is the best arrangement for your family.

In most cases it is best if both parents can discuss the needs and what is in the best interest of their child in terms of where the child will live and how they will spend time with each parent.

How are the financial costs distributed if one parent is given full custody?

As is outlined in our Guide to Child Support in Australia, regardless of who has custody of a child, both parents have a financial responsibility to support the wellbeing and future of their child. So when one parent is granted full custody, the other parent is still required to financially support their child. There is no one size fits all for how child support payments work, and they can be paid in a number of ways, including regular payments, or one parent being responsible for certain costs such as school fees.

Regardless of whether you think you can reach an agreement on what your ex-partner will pay, or you think you may need to go to court, you should seek legal advice from an experienced family lawyer to ensure you receive sufficient financial support for the welfare of your child.

Can an appeal be made if the determined arrangements are not working?

If you have made arrangements outside of the court, you can make changes to your arrangements by negotiating with your child’s other parent. Even if you have an amicable relationship, it’s advisable to seek legal advice should you need mediation or assistance in negotiating new arrangements.

If you have a court order, you will be required to satisfy the court that there has been a significant change in circumstances. Our experienced custody lawyers are able to advise you through each of these processes.

What if the other parent does not act in accordance with the court´s decision?

If you originally made arrangements outside of court, you may need to apply for one, which our custody lawyers can do for you. If you do have a court order, our lawyers can provide advice on whether you should take legal action or look at changing the order to satisfy the new needs.

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