What are Australia’s child custody laws?
Well, we can start by saying they’re definitely contentious. Debate about their fairness floods Internet forums (where they still exist), online news comment sections and dinner tables across the nation. Are mother’s favoured? Do father’s get the short end of the stick? What legal action do you take if you feel rulings aren’t in your child’s best interests? And, exactly what are the laws and how are they subject to interpretation by the Court?
A big and complicated issue, we’re taking the time to dedicate this blog to informative, jargon-free stories and factsheets about child custody, child support and family law.
Today we start this mission by providing an overview (and hopefully some clarity) into what exactly Australia’s custody laws are.
Let’s start with some context around the Family Law Act, 1975
Australia’s child custody laws fall under the Australian Parliamentary Family Law Act, 1975. All-encompassing, the act has 15 parts and is the main Australian legislation overseeing divorce and separation, parenting arrangements, property separation, and financial maintenance involving children of divorced or separated de facto couples.
The original 1975 Act and subsequent amendments
The 1975 government led by Prime Minister Gough Whitlam saw a sweep of legislative introductions, including the Family Law Act. Of which, one of the main innovations, was the introduction of no-fault divorce.
A change in government often means changing legislation
A controversial and often politicised piece of legislation, the Family Law Act has been subject to changes by both conservative and liberal Australian governments.
Of particular note are the Liberal Government’s 2006 changes, which included:
- a progression towards compulsory mediation (before Court proceedings can be filed, in an effort to ensure matters do not reach litigation),
- greater examination of issues involving family violence, child abuse or neglect,
- more importance being placed on a child’s family and social connections, and
- a presumption that parents have equal parental responsibility – NOT equal parenting time.
- encouraging both parents to remain meaningfully involved in their children’s lives following separation, provided there is no risk of violence or abuse.
How does the Family Law Act apply to children?
When there is a dispute concerning the custody of your child/ren, including where they will live and the allocation of time each partner has, the starting point is Section 65E of the Family Law Act.
What do you need to know if you’re a separating parent?
- All matters pertaining to children are determined on the basis of who the child will ‘live with’ and ‘spend time with’
- While we may commonly understand the term custody as where a child lives, the concept (as it pertains to the law) was abolished in 1995 with the Family Law Reform Act
- Both parents are responsible for the care (including financial upkeep) of children irrespective of whether parents were or have ever been a couple
- Parental responsibility includes the ability to make decisions in the day-to-day care and welfare of children, including where they go to school
- Adoptive parents have equal rights as biological parents
- However, whilst responsibility is generally shared 50/50 there is no guarantee of a 50/50 split in time shared with children
- If the Court decides to allocate an un-equal share of time between parents, then the Court must consider allocation ‘substantial and significant’ time instead
- However, there are some instances where a parent’s rights to see their children can be totally revoked, such as in cases with a history of domestic violence or sexual abuse
- The Court is legally obliged to decide who a child lives with and how much time they spend with each parent on the principle of “in the child’s best interests”
How does the court assess what’s in the best interests of the child?
The Family Law Act lists the factors courts must consider when ruling on what’s in the child’s best interests as:
• Any wishes expressed by the child. When interpreting these wishes, the court must give weight to any factors that could be relevant to the child’s ability to interpret their situation such as their age and level of maturity.
• The nature and history of the child’s relationship with each parent.
• How a change to the child’s circumstances may affect them. Such as how a child may be impacted upon if separated from either of his or her parents or any other person (siblings, grandparents, parent’s partners) the child has been living with.
• Any practical difficulties that may arise with custody arrangements. Such as the financial expense or lifestyle and education obstacles that may occur in long-distance parenting arrangements.
• The ability of each parent to provide for the child including his or her emotional and intellectual needs.
• Each parents attitude to the child and their demonstrated dedication to the responsibilities of parenthood.
• Any history of family violence.
• And any other facts or circumstances the court feels relevant to the case.
Useful family law resources:
Family law matters can be complicated, but you don’t have to wade through the waters of divorce and separation alone. There are multiple resources, both online and off, to help you and your family. Below are just some of the sites where you can find more information and access more assistance for your family law matter:
Relationships Australia is a leading provider of relationship support services for individuals and families. Their aim is to support families during trying times come to respectful resolutions. If you’re separating you can organise Family Dispute Resolution through their website at one of their many offices Australia wide.
Find out more about dispute resolution, separation and divorce, parenting and court procedures on this national government website. You can also download forms for consent orders, subpoenas and more.
Family Relationships Online is a national government resource hub for families. Here you’ll find advice for carers, parents, grandparents and children on communicating effectively, separation, dispute resolution and an up-to-date list of their Family Relationship Centres, where you can get face-to-face advice and support.
Are you going through a divorce or separation? Do you find the laws confusing? Or unfairly weighed in one party’s favour? Let us know more about your experience in the comments section below. Looking for legal advice? Contact a family law solicitor today by filling out a contact form.