Australian law does not use the term “full custody,” instead focusing on “parenting arrangements” and “parental responsibility.” The core complication is that the law encourages shared consultation between parents, provided it is safe to do so.
Consulting on major long-term issues
Under section 61CA, parents of a child under 18 are encouraged to consult each other regarding major long-term issues, keeping the best interests of the child as the paramount consideration. Practically, this means that sole decision-making is generally only considered when such consultation is not safe.
The link between divorce and child care
A divorce order cannot take effect until the court is satisfied under section 55A that proper arrangements have been made for the care, welfare, and development of children under 18. This ensures that a child’s immediate stability is addressed before the marriage is legally dissolved.
Limits on parenting orders
Under section 65H, the court cannot make a parenting order for a child who is 18 or over, or who has married or entered into a de facto relationship. Consequently, legal disputes over parenting arrangements end automatically once the child reaches adulthood or enters a domestic partnership.
The safety threshold
The legislation allows parents to avoid consultation on major issues if it is not “safe to do so” under section 61CA. However, the provided text does not specify the evidentiary standard required to prove a lack of safety, creating a significant practical difficulty for parents.
Questions to consider
- Is it safe for me to consult the other parent on major long-term issues regarding the child?
- Have proper arrangements for the child’s care and welfare been established to satisfy the court under section 55A?
- Does the child’s age or relationship status preclude the making of a parenting order under section 65H?
This information is general in nature and does not constitute legal
advice. For advice specific to your situation, contact JB Solicitors.