A custody battle is an emotional warfare that separated or divorced parents go through either in the courtroom or outside the courtroom. After a divorce, one parent will mostly want more time or all the time with their child. But how can a parent win a custody battle? Should there be one in the first place?
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 rights and responsibilities to their children, regardless of whether they live together or not.
But wait! 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. The family court decides about the children’s living arrangements and how much time each parent will spend with them.
So, divorce that involve children should not be a contest on who gets more time and care for their child. Neither the father or mother should win. In such cases, the child should be the winner.
Why Should We Follow the Child’s Best Interests?
Australian family law greatly values a child’s growth and safety with their parents. Is a parent unfit to care for a child, provides an unsafe environment for the child and is abusive? Then, one should expect that the child will spend more time or stay with the other parent. If circusmtances allow, the unfit and abusive parent may still visit their child under strict supervision.
Now, what if both parents can agree on parenting arrangements and avoid a custody battle? Then, they would get equal time with their child. This is the ideal setup. Neither parent has to suffer from not seeing or spending time with their child. Parents should understand that following their child’s best interests is a need and not because the law tells them to.
The Family Law Act of 1975 governs custody disputes in Australia and prioritises the child’s best interests. 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. 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 determining the best interests of the child.
The Law on Child Custody Battle in Australia
To leanr more about the child’s best interest, let’s discuss some laws that back up this principle.
Children have the right to protection and a meaningful relationship with both parents under Australian family law. The Family Law Act of 1975 is gender-neutral and 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 it should be 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, mediation is available to help them reach an agreement.
Mediation is often recommended as a less confrontational method to reach a custody agreement before resorting to court.
The Ever-Famous “Parental Responsibility”
As defined under Section 61B of the Family Law Act, parental responsibility means all the duties, powers, responsibilities, and authority, by law, parents have in relation to their children. Moreover, there used to be a presumption in the law of equal shared responsibility when the Court makes parenting orders.
To learn more about equal shared parental responsibility and why it was abolished, click here.
Child Custody Battle: Overview of the Process
1. Making arrangements
In most cases, both parents should discuss their child’s individual needs and come to an agreement about where a child will live and how they will spend time with their parents. Effective communication between parents is essential for co-parenting. This gives court a positive view during custody battles.
2. Court process
Did both parents agree on the arrangement? No? Then, this is when a child custody battle begins. If parents cannot agree on arrangements for their children, the court will urge them to undergo mediation.
If this still fails, 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 during child custody matters that are in the best interests of the child, and take into account a range of factors that will be discussed later on in this article.
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.
Factors That Affect Court Decisions in a Child Custody Battle
Aside from the fundamental principle of considering the best interests of a child in making parental orders, other factors might heavily affect the court’s decision in a child custody battle:
- The views and opinions of the child. The family law court may take into account the views and opinions of the child, depending on their age and maturity. Family report writers are usually the people who are responsible for investigating the dynamics of a family during and after divorce.
- 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, as well as the child’s relationship with other significant people in their life, such as grandparents or step-parents.
- The practical difficulties of spending time with each parent. Is the distance of each parent too far from each other? What about the distance of the child’s school from each of their parent’s houses? The court will need to consider this.
- The history of family violence. Family violence is a serious crime and the court will work tirelessly to identify if it is present in the family dynamic or not.
- Financial status. The court may take into account the financial status of each parent, including their income and ability to provide for the child.
- Parental alienation. Parental alienation is keeping a child away from the other parent without their knowlede or consent. A common form of parental alienation is bad-mouthing the other parent in front of children which causes emotional damage.
We Want a Legal Parenting Agreement
Child custody battles can be long, expensive, and emotionally draining. What most parents with clouded judgements don’t know that custody battles are also harmful to their children. Children will in one way or another feel the stress and emotional turmoil of the divorce.
That is why parents need to try to reach an agreement outside of court, whenever necessary. If they cannot agree, they should seek professional help from a family mediator or lawyer. Let’s draft your parenting agreement together!
Our competent family lawyers at JB Solicitors can provide legal advice on your child custody dispute, your obligations as a parent, the factors that the court will consider when making a decision, and the different types of custody arrangements available.
Contact an experienced family lawyer today if you need to seek legal advice about a child custody case.
