The topic of custody rights in NSW is extremely important. As couples get divorced or separated, one of their main concerns is about their rights and responsibilities towards their child.
When discussing parenting related matters, family courts give paramount consideration to the best interests of the child. The best interests principle recognises the need to protect the child from all form of harm – be it physical harm, sexual abuse or psychological harm.
This article on custody rights in NSW discusses important topics such as the meaning of shared custody, parental responsibility, and sole custody.
Custody Rights NSW: What Is Custody?
In Australia, family legislation does not use the term ‘custody’ very often. This is because, it is believed that there are negative connotations associated with the term. Instead, Australian legislation uses the term “parental responsibility.”
According to Section 61B of the Family Law Act (1975), the term parental responsibility in relation to the child means all the duties, powers, responsibilities and authority which by law, parents have in relation to the children.
Parental responsibility is in relation to the day-to-day as well as long term decision which affects the child’s life. This can include decisions on health, education and residency of the child/ren.
According to Section 60CC of the Family Law Act (1975) – a primary consideration under the best interests principle is that the child should enjoy a meaningful and healthy relationship with both parents.
This is related to the presumption of equal shared parental responsibility. According to the Family Law Act (1975), both parents will have equal responsibility over the child, and equal authority to make short-term and long-term decisions in the child’s life.
When discussing custody rights in NSW for both parents, it is important to note that both parents will have equal shared parental responsibility. However, the Courts can rebut this presumption if it is satisfied that awarding both parents with shared responsibility is not beneficial to the child.
What Are Sole Custody Rights In NSW?
Sole custody means that only one parent will have all the authority to make all decisions in the child’s life. This is also known as sole parental responsibility.
In cases where both parties have equal shared parental responsibility, they choose to make arrangements to realise their custody rights in NSW. These could be in the form of informal parenting plans, or the more formal consent orders.
However, when a parent has sole custody, they need not share the child with the non-custodial parent. Notably, sole custody does not necessarily mean that the child will have no contact with the non-custodial parent.
The court can make no contact orders against the non-custodial parent only in extreme cases involving abuse. This usually happens in cases where one parent has subjected the other parent and the child to family violence in the form of physical, psychological or sexual abuse.
For example, in the case of West and West [2016] FamCAFC 238, the mother was given sole parental responsibility of the child, and the father was restricted from having access to the child for the personal protection of the mother and the child.
How To Make Parenting Arrangements In Cases Of Equal Custody?
While discussing custody rights in NSW, many parents are concerned about parenting arrangements. Indeed, custody disputes are still one of the most common issues which arise following a divorce or separation.
Because of how emotionally challenging a divorce or separation can be, all involved parties feel more stressed around custody issues. This often leads to unnecessary conflicts and disagreements.
The most important thing for both parties to enjoy equal custody rights in NSW is to formulate a plan or agreement where both enjoy equal time with the child wherever possible. To do so, both parties need to have a healthy discussion.
If parties are unable to reach a satisfactory agreement, they often seek mediation. Being able to communicate openly is very important in order to make effective parenting plans. Moreover, each party needs to be flexible and cooperative.
Parenting plans are informal agreements which are not legally binding. After this, it is necessary for the parties to apply for consent orders at the court. Consent orders make the plans legally binding. Courts can penalise parties who have breached the orders.
In case of serious conflicts where the parties are simply unable to reach an agreement, they will need to make an application to the court. The court will make parenting orders by assessing the circumstance of the family, and the best interests of the child.
These parenting orders will be legally binding on both parties, and breach of these orders will be a punishable offence.
Importance Of Seeking Legal Advice From Family Lawyers
The subject of custody rights in NSW often gives divorcing/separating couples anxiety because of all the uncertainty around it. This is why the support of family lawyers is necessary.
At JB Solicitors, our team of family lawyers consists of award-winning mediators and experts. Our lawyers understand how difficult a divorce or separation can be, especially for all the children involved.
We have a wealth of experience in handling custody and other parenting disputes with utmost proficiency. Moreover, we can help with matters which need mediation or family dispute resolution. We can also help with legal matters related to child support or child maintenance payments.
Most importantly, our lawyers are here to help you understand all your custody rights in NSW.
Our fixed-fee prices also gives all clients financial transparency throughout all legal proceedings. Our strong commitment to help the community, and passion to be experts make us a standout team of family lawyers.
Contact our experienced and friendly team for all enquiries.
