Going through a divorce or separation and wondering what custody rights you have as a parent in Western Australia (WA)?
If yes, then read on to find out what custody rights are in WA.
According to the Family Law Act 1975, custody is defined as:
“The right to have the daily care and control of the child, and the right and responsibility to make decisions concerning the daily care and control of the child.”
Under family law, in cases where spouses have divorced or separated, when one parent is given custody, it means that the child will be placed under their care after separation. Primarily, this includes which parent the child will live with, or spend time with.
However, it is important to note that in Australian family law, the common term used to refer to ‘custody rights’ is ‘parental responsibility’. As a term ‘custody’ is less commonly used in Australian law.
This is because the word ‘custody’ is usually associated with ‘ownership’, and the law places more importance and emphasis on the interests of the child.
Best Interests Of The Child
According to the court, the best interests of the child include: –
- He/she is protected from any physical harm, or psychological harm. This also includes children who are facing neglect or family violence.
- The advantage of the children sharing a meaningful relationship with both their parents.
Custody Rights and Laws WA
As mentioned above, the Family Courts in Australia refrain from using the term ‘custody’. For WA, the applicable laws are set out in Part 5 of the Family Court Act 1997.
Custody Rights WA: 1. Parental Responsibility
Similar to custody, parental responsibility, refers to all the duties, authorities, responsibilities and powers that a parent has in relation to his/her child.
Parental responsibility can include making major decisions in the child’s life. These decisions could be about: –
- Living arrangements,
- Education and School,
- Medical treatment, and
- Cultural matters.
In Australia, regardless of whether the parents are married, in a de facto relationship, or have never been in a relationship, each parent has parental responsibility for the child until the child becomes an adult, i.e., turn 18 years old.
Essentially, this means that both parents have equal rights in making decisions about the child.
In cases of divorce or separation, to determine custody rights or parental responsibility in WA, the Court checks what is in the best interests of the child.
The law also assumes that both parents will agree about matters that are in the best interests of the child. In this case, the court can make an order that the parents have equal shared responsibility.
If parents enjoy equal shared responsibility, the court will check how much time the child will spend with each parent. To do so, the court takes the following options into consideration: –
If there are parenting agreements in place, the court does not need to make parenting orders. In these cases, parents simply lay out a parenting plan.
However, in case there are disagreement between spouses, then the court can set parenting orders, that are future arrangements made by determining the best interests of the child. Parenting orders can be enforced by the court.
- The child gets to spend equal time with each parent.
- The child will spend substantial or significant time with each parent
- Other arrangements.
If there are parenting agreements in place, the court does not need to make court orders. In these cases, parents simply lay out a parenting plan.
However, in case there are disagreements between spouses, the court can make parenting orders. These are future arrangements made by determining the best interests of the child. Parenting orders can be enforced by the court.
Custody Rights WA: 2. Parenting Orders
Parenting order is the order given by the court which decides how parental responsibility (custody) will be allocated.
Certain aspects that the court takes into consideration while making parenting orders include: –
- The amount of time the child will spend with each parent, and their extended family, including grandparents.
- Who the child will be living with.
- How the child is to communicate with the non-custodial parent, or the parent he/she does not live with, and extended family such as grandparents.
- Any other aspect related to the development, care, and welfare of the child.
The Family Court of Western Australia has parenting order kits that are available for Applicants.
Sole Custody Rights WA
In certain circumstances, the court will not allow equal shared responsibility to be enjoyed by both parents. If the court finds evidence that shared responsibility will not be the best interests of the child, the court will either grant no order for parental responsibility, or give sole parental responsibility.
Sole parental responsibility can be given to either one parent, or even to grandparents in certain cases.
Sole custody rights are usually considered in WA in instances where: –
- There has been family violence by a parent or person who lives with one of the parents, or if there has been child abuse; and
- There are irrevocable differences between the parents, and the parents are not able to reach an agreement or find a common ground on what is best for the child.
Sole parental responsibility allows the parent to make decisions for the child without needing the consent of the other parent.
Seek Legal Advice
Yes, the laws and rights are set out explicitly in the legislation.
However, there are no specific rules that are stated in the legislation around who enjoys parental responsibility. In other words, because each case is so different to each other, the outcomes of the cases vary greatly.
The Family Courts then make decisions based on each case separately.
This is where our expert family lawyers from JB Solicitors can guide you. Our friendly lawyers will take your unique circumstances into consideration and provide valuable legal advice that will benefit you and your child.
By obtaining proper legal guidance you can set out a solid parenting plan that will minimise the chances of any disputes occurring in the future. Alternatively, you might wish to change the Parenting Order that is given by the court. In such instances, it is important to have lawyers who can argue for your case.
Contact JB Solicitors today to have a confidential chat on your custody rights or parental responsibilities.