The aim of this article is to highlight what sole custody of child means, and discuss some of the key aspects related to sole custody of child in Australia.
What Is Sole Custody Of Child?
In Australia, the term sole custody and sole parental responsibility is used interchangeably.
Under Section 61B of the Family Law Act 1975, parental responsibility is defined as follows:
“All the duties, powers, responsibilities and authority which, by law, parents have in relation to children.”
These responsibilities can include a number of things like: –
- Making decisions about the child’s religion, upbringing and education
- Applying for a passport or visa for the child
- Consenting to the children being adopted
- Taking any reasonable measures to discipline the child
- Introducing any legal proceedings on behalf of the child
Under Section 61C of the Family Law Act 1975, parental responsibility is presumed to be held equally by both parents.
However, in some cases, following the breakdown of a relationship, one parent wishes to apply for sole custody of child.
Sole custody means that only one parent will have the legal authority to make decisions for the child, including decisions about the care of the child, welfare and development of the child, and living arrangements of the child.
Additionally, this also means that the parent who has sole custody of child is not legally required to share the care of the child with the non-custodial parent (the parent who does not have custody of child). The custodial parent can also decide the amount of time the child spends with the other parent.
How To Apply For Sole Custody?
In cases where a parent worries for the safety of their child, and believes that there is a threat to the safety of the child if the child remains in contact with the other parent, then they may apply for a sole parenting order.
As mentioned, under the Family Act 1975, both parents share equal parental responsibility. The parent seeking sole custody of child needs to rebut this presumption of equal shared responsibility, and needs to prove to the court that sole custody of child will be in the best interests of the child.
Additionally, the parent will need to prepare an affidavit explaining why the orders they seek are going to benefit the child.
To be able to apply for such an order, the parent seeking sole custody of child has to provide the court with full details related to the claim. This includes any police reports, or witness statements, and any evidence that shows that shared custody will create more problems than a sole custody parenting order.
Moreover, the parent can show evidence of a total breakdown in communication between the parents. Lastly, the physical and/or mental health of each parent might also be a relevant factor that is considered by the court.
Other types of evidence that the court might consider include: –
- Court ordered Apprehended Violence Orders (AVOs) in domestic/family violence cases
- Medical records
- Evidence that indicates that one parent has a history of violent behaviour, that can potentially endanger the child and impact their well-being
How Does The Court Decide?
In making any decisions about parenting matters, the Court is required to act subject to the presumption that shared responsibility is in the best interests of the child.
Ultimately, in deciding whether a parent should have sole custody of child, the court will balance the best interest of having meaningful and regular contact with one parent, against the potential harm caused to the child by remaining in contact with the parent.
The child’s best interests include both short-term and long-term concerns, including the child’s emotional well-being, physical well-being, their health, and financial, educational, moral, cultural and religious interests.
Section 60CC of the Family Act 1975 lays out all the factors when considering the best interests of the child.
- The need to safeguard the child from any physical harm or psychological harm. This also includes the essential need to protect them from being subjected to any form of harm, and from being exposed to family violence, abuse or neglect.
- When making orders regarding parenting matters, the most important consideration is given to the need to protect the child from any form of harm.
Certain Additional Considerations
- Taking into consideration the child’s views and opinions, their maturity and level of understanding
- The relationship the child shares with his/her parents, and extended family including the child’s grandparents
- If the parents have the ability to facilitate and encourage a healthy relationship between the child and the other parent
- The impact of any change in the circumstance, including being separated from the parent, or any other person that the child has been living with
- Each parent’s ability to provide proper care to the child
- Each parent’s attitudes and responsibilities towards the child
- Any practical difficulties and/or expenses arising from the child spending time with a parent or communication with a parent
- Any forms of domestic violence
Rights Of Parents Who Have Sole Custody
The parent with sole custody or parental responsibility will have the following rights: –
- Sole responsibility for some, or all areas of the child’s lives. This means that the parent need not consult their former spouse in making decisions that concern the child.
- The child is to live with one parent exclusively, and
- The parent can make decisions on the extent of contact the child can have with their former spouse.
Importance Of Seeking Legal Advice
As a parent, you need to know how to protect your rights. We understand that the protection of your child is if paramount importance to you.
Our team of friendly and compassionate lawyers are committed to providing you with a high-quality legal service to address your concerns.
JB Solicitors’ expert family lawyers can help in custody matters in a variety of ways, including: –
- Assisting with the application process for the parent who wants sole custody.
- Providing mediation services in cases where one parent disputes the application for sole custody made by another parent.
- Explaining the pros and cons of applying for sole custody.
- Giving the parent a clear sense of the rights that they will have.
Contact us today to get family law advice that will help you with sole custody matters, or any other parenting related issues.
Watch our YouTube video to get additional information if you want to apply for the full-time care of your child.