In divorce and separation cases which involve children, the first thought of both parties is in relation to their custody rights in Australia. The breakdown of a relationship causes great stress to every parent, but adding to this stress is the uncertainty about their custody rights in Australia.
When discussing custody rights in Australia, we explore two important factors – parental responsibility and visitation rights. Notably, the term “custody” is not used commonly in Australian legislation because of certain negative connotations it has.
Rather more focus is given to the rights of the child as opposed to issues like “custody.” When discussing parents’ custody rights, we discuss factors like parental responsibility instead.
For both parties to reach an understanding about their custody rights in Australia, there can be various approaches used. For example, this can be determined by using parenting plans or arrangements, or by approaching the Court in cases where the parties are unable to reach an agreement.
Before we discuss these approaches, let’s go over what parental responsibility means in brief.
Parental Responsibility In Australia
Section 61B of the Family Law Act (1975) defines parental responsibility in relation to the child as all the duties, powers, responsibilities and authorities which by law parents have. Under our legislation, there is also a presumption of equal shared parental responsibility.
According to Section 61DA, when making parenting orders, the court applies a presumption that it is in the best interests of the child for both parents to have equal shared parental responsibility over the child.
This also includes the parents’ decision-making authority wherein equal shared parental responsibility would mean that both parents have equal rights and duties to make short-term and long-term decisions in the child’s life.
Some important long-term decisions include:
- Regarding the child’s education including which school the child is to attend;
- Regarding health-related decisions such as what kind of medical care and/or treatment should the child receive;
- Regarding the child’s place of residence i.e. where the child is to live;
- Regarding financial support for the child;
- Regarding any religion or cultural beliefs which the child should or should not follow.
How Can Both Parties Uphold Their Parental Responsibilities?
To ensure that both the father and mother of the child are upholding their respective duties towards their child, many separated/divorced couples make parenting plans or arrangements.
The parenting plans/arrangements are an important aspect for both parties to realise their custody rights in Australia. In these plans/arrangements, details about how much time the child is to spend with each party, and other information on parenting schedules are included.
Other important information like financial maintenance of child, and how the child is to communicate with each parent, etc are also included.
These informal arrangements can work efficiently in cases where both parties are in agreement about parenting arrangements. For formalising or legalising the plan, the parties can make an application for a consent order at the court.
Where both parties are in disagreement about the way these arrangements should be made, they will first need to attend mediation or family despite resolution to resolve their differences.
In cases where the disputes still persist, the parties will need to approach the courts. Here legally binding parenting orders will be made by considering the best interests of the child.
Custody Rights In Australia: Visitation Rights
As we discussed earlier, the topic of custody rights in Australia must include parental responsibility as well as visitation rights. In cases where the child resides with one parent (custodial parent) for a longer period of time, the other parent (non-custodial parent) can exercise their custody rights in Australia through their visitation rights.
It is possible for the Courts to order that the child reside with one parent if there are factors which prove that this decision is in the best interests of the child. For example, a parents’ work commitments might pose a problem which is why the Court can order that the child live with the other parent.
However, it is important to note that the non-custodial parent in this case will still be entitled to custody rights in Australia. Under Section 60CC of the Family Law Act (1975), one primary consideration for the best interests of the child is that the child should have a meaningful relationship with both parents.
Here both parties can make visitation and custody schedules to ensure that the child maintains a healthy relationship with both his/her parents. As discussed before, these schedules can also be included in their parenting plans and arrangements.
Custody Rights In Australia: What Is Sole Custody?
In some cases where the child has been subjected to abuse, neglect or harm because of the actions of one parent, the other parent may apply for sole custody. This happens if the parent has exposed the child to family violence or domestic violence.
Sole custody means that only one parent will have duties and responsibilities towards the child and he/she will be the primary carer of the child.
In this case, the court will consider the best interests of the child and make an order providing sole custody to one parent. Depending on the severity of the case, the court may or may not allow the other parent to have visitation rights.
If it is found that the parent has exposed the child to serious psychological or physical harm, a strict no contact order can also be made.
JB Solicitors’ Advice For Family Law Matters
Family law cases are extremely complicated. Custody related matters become more challenging because of how personal and emotional the case can get. For these reasons, having experienced lawyers by your side will help you with your matter.
At JB Solicitors, our family lawyers have a wealth of experience in dealing with parenting and custody matters. By understanding the needs of our clients and their child/ren, we use our expertise to make sure that they reach the best possible outcome.
Contact JB Solicitors experienced and friendly team of solicitors today.