Child custody laws in Australia cover a wide variety of fields which will be essential for you to know following a divorce or separation.
This article aims to provide a quick overview of the most commonly enquired upon fields in the realm of child custody laws in Australia.
Equal Shared Parental Responsibility
Equal shared parental responsibility is the presumption and legal starting point for the family court of Australia in determining family law matters. Child custody laws in Australia assume that it is in the child’s best interests to have a meaningful relationship with both parents. This is reflected in s61DA of the Family Law Act.
The factors that will shift the balance of the presumption include:
- Any family violence and the need to protect the child from exposure to psychological and physical harm
- The time each parent can spend with the child
- Where the child goes to school
- The practicality of the situation
- The child’s views and the impact any arrangements will have on them
- Whether each parent presently fulfils their duties as a parent
Family Violence & Sole Custody
If one parent is seeking sole custody of the children, and the other parent objects – the matter will first need to proceed to a mediation setting before court proceedings can be commenced. This is primarily because the family court of Australia is heavily inundated with matters, so child custody laws in Australia attempt to have cases resolved through other avenues before proceeding to court.
However, an exception to this rule is when family violence is present or where there is an AVO already in place against one partner. In such a situation, the matter may proceed directly to the family court of Australia, which has the power to award one parent with sole responsibility for the child.
The court’s paramount consideration in making its determination is ensuring that the child’s best interests are met. Therefore, the successful applicant will be the one who can rebut the presumption that it is in the child’s best interests to have regular contact with the other parent. This can likely be made out, as family violence and abuse are significant factors which rebut the presumption.
What Is An ICL & Why Have They Been Appointed?
As your child is legally a minor, child custody laws in Australia dictated that they cannot legally represent their interests in the courtroom setting. As such, an independent children’s lawyer is appointed to objectively represent what they believe to be is in the best interests of your child.
The role of an Independent Children’s Lawyer encapsulates the following:
- Organising evidence for the court to view and hear
- Taking on an agent role between the parents and the child involving facilitating negotiations amongst them
- Facilitating the involvement of the child in the proceedings relative to the circumstances of the case and the child’s age and maturity level
My Former Partner Is Not Complying With Court Orders
A lack of compliance with court orders is a severe breach that is capable of attracting significant consequences. The common misconception is that the court will always look favourably upon mothers, and it is pointless for the fathers to legally pursue matters because of this as the court will always side with them. This is not true. The only exception to not complying with court orders is a reasonable excuse or an agreement to vary. In all other instances, the orders should be followed at all times.
If your former partner is not complying with court orders, you should contact an experienced family lawyer today to discuss your options.
Child Recovery Orders
When one parent takes a child without permission, child custody laws in Australia step in to counteract this. However, the reality of the situation is that just because it is your child, it does not mean you can disobey court orders regarding the parenting arrangements of your child.
Child recovery orders are utilised in this predicament and practically is where the Family Court compels one parent to return a child to the other. The orders include authorities for the federal and state departments to recover and return the children and the power to arrest the person who removed the child without permission.
In determining whether to award child recovery orders, the Family Court will consider the following:
- Whether it is in the best interests of the child to have a meaningful relationship with both of their parents
- The need to protect the child from any violence, harm, neglect and abuse
- Preventing the child from being exposed to any psychological harm
Importance of Seeking Legal Advice
It is important to note when discussing child custody laws in Australia….
Here at JB Solicitors, we’ll make the process as pain-free as possible. We have fixed-fee pricing for family law, giving you a clear sense of the costs from the start, and we will be sure to help you out every step of the way. With years of experience under our belt, we pride ourselves on making each client’s family law experience as positive as possible.
Contact JB Solicitors today to speak with one of our friendly and experienced family lawyers.
More Articles & Videos
If you have any more questions about child custody laws in Australia or any other family law matters, head over to our blog section for more informative articles on a wide range of family law topics.
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