A custody battle is an emotional battle that separated or divorced parents go through either in the courtroom or outside the courtroom.
In Australia, there is no such thing as “custody” in the traditional sense. Instead, the law focuses on “parental responsibility“. This means that both parents have equal responsibilities in relation to their children, regardless of whether they live together or not.
However, this does not mean that custody disputes do not happen in Australia. In fact, they are just as common here as they are in other countries. When parents cannot agree on how to raise their children after separation, they may end up in the family law court. The court will then make a decision about the children’s living arrangements and how much time each parent will spend with them.
Law on Child Custody Battle in Australia
Children have the right to protection and a meaningful relationship with both parents under Australian family law. The Family Law Act of 1975 is makes no assumptions about who should be the primary caregiver. When a family court decides something involving a child, the court will provide a ruling that is in the child’s best interests.
The terms “custody” or “contact” are no longer used in Australian family law. Instead, parents are encouraged to discuss their child’s individual needs and come to their own agreement about where a child will live and how they will spend time with their parents. If parents cannot agree on arrangements for children after separation, specialist family services are available to help them reach an agreement.
As defined under the Act, parental responsibility means all the duties, powers, responsibilities, and authority, by law, parents have in relation to their children. Moreover, there is a presumption in the law of equal share responsibility when the Court makes parenting orders.
Section 61DA of the Act provides that the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
However, the presumption does not apply if there are reasonable grounds to believe that a parent of the child:
- Abuses the child or another child who, at the time, was a member of the parent’s family.
- Engages in family violence.
Child Custody Battle: Overview of the Process
1. Making arrangements. In most cases, it is best for both parents to discuss their child’s individual needs and come to their own agreement about where a child will live and how they will spend time with their parents. However, if parents still have a custody dispute on arrangements for children after separation, specialist family services are available to help them reach an agreement.
2. Court process. This is when a child custody battle begins. If parents cannot agree on arrangements for their children, they may need to opt for court proceedings. The family court will hear submissions from both parents and then issue a ‘parenting order’ setting out how the responsibility for the child will be shared.
The court will make orders that are in the best interests of the child, taking into account a range of factors that will be discussed in the following sections.
3. Joint parental responsibility. Unless the court makes an order changing the statutory conferral of joint parental responsibility, each parent has equal parental responsibility for their child until the child turns 18.
4. Financial status. The court may take into account the financial status of each parent, including their income and ability to provide for the child.
Child Custody Battle: Meaning of Child’s Best Interest
The term “best interests of the child” is not precisely defined, but it is a primary consideration in all actions concerning children. In Australian family law, the best interests of the child are a fundamental principle that is taken into account when making decisions relating to a child in a custody battle.
Under Section 60CC of the Family Law Act 1975, the court determines the best interests of the child based on two primary considerations:
- The benefit to the child of having a meaningful relationship with both parents.
- The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect, or family violence.
The best interests of the child are both long-term concerns and short-term concerns and they include the consideration of the child’s physical and emotional well-being and their health, financial, educational, moral, cultural, and religious interests. The court has discretion to consider anything it thinks is relevant to determine the best interests of the child.
Factors that Affect Court Decision in a Child Custody Battle
Aside from the fundamental principle of considering the best interests of a child in making parental orders, there are also other secondary factors that might heavily affect the court’s decision in a child custody battle:
- The views and opinions of the child. The court may take into account the views and opinions of the child, depending on their age and maturity.
- The relationship the child has with their parents or other significant people in their life. The court will consider the nature of the relationship between the child and each parent. It will also consider the child’s relationship with other significant people in their life. This includes grandparents or step-parents.
- The practical difficulties of spending time with each parent. The court will consider the practical difficulties of spending time with each parent. For instance, the distance between the parents’ homes and the child’s school.
- The history of family violence. The court will consider any history of family violence as one of seven new criteria when new laws scrap the assumption of “equal shared responsibility.”
- Financial status. The court may take into account the financial status of each parent. This includes their income and ability to provide for the child.
Can’t Reach a Parenting Agreement With the Other Parent?
Child custody battles can be long, expensive, and emotionally draining and it can also be harmful to the children involved. That is why it is important for parents to try to reach an agreement outside of court, if possible. If they cannot agree, they should seek professional help from a family mediator or lawyer.
Our competent family lawyers at JB Solicitors can provide legal advice on child custody matters, including the legal rights and obligations of each parent, the factors that the court will consider when making a decision, and the different types of custody arrangements available.
If parents cannot reach an agreement, we can represent them in court during the custody battle and make arguments on behalf of our client to support their child custody case.
Contact an experienced family lawyer today if you need to seek legal advice about a child custody dispute.
