What are Australia's Child Custody Laws?

July 9, 2015

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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.

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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”

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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

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. 

Family Court of Australia

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 

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. 

 

  • Natasia Stylianou

    I have not had any contact with my son for almost 12 months. Mediation was not attempted because my ex would not co-operate and I have a section from Relationships Australia to support this. My application for legal aid was knocked back. Now my ex has my son, other family members have weighed in and all I have is a piece of paper saying mediation was not an option. Family law in this country is a joke.

    • Father

      Family Law is a joke…look at the policies of who you vote….separations are more common than you think…we all need to stand together and vote for politicians who will act for strong changes to our Family Law….

    • Trudi Jane

      read your comment. Have you had any contact yet? I found Relationships Australia do not help but hinder. They actually have no rights to intervene. Would be interested to followyour case. I fought my 3 tear custody battle myself against my x, 2 lawyers and then a barrister. My daughter never goes to her father which actually defies the orders. trudi

      • Hannah Reed

        I wish i could do this!

        • Trudi Jane

          Hi, You commented on my comment. Feel free to ask me anything or just chat over email. My daughter came through it ok but it was a long story. There needs to be a better way for custody. I am now studying for my diploma in counselling. And I am trying to complete the story to publish in book form. My email is trudijane13@gmail.com.

          • Andi Lee

            can I contact you with my story and if you can provide some helpful tips for me

          • Trudi Jane

            Yes email me your story and I will correspondent with you. RegardsTrudi

          • Lisa A Thompson

            Hi. My partner is currently trying to get custody of his children due to neglect. we live in a different state to his kids and was actually in court today and was told that if he lived in the same state he would have gotten the kids. Now the courts r trying to make him move so he gets custody. I cant move for custody reasons with my children also. I just dont understand how they can make a man walk away from his home his relationship and his life so he can get his kids! I’m devastated as i know if it comes down to it his kids come first… but i think my real question is… can they make him move?

      • Suzanne

        Any advice you have would be great. I’m going through relationships Australia atm and it’s starting to cause me quite a bit of anxiety.

        • Trudi Jane

          Most of the time we are convinced to do things that are not necessary in custody battles. Tell me your situation and I can tell you where you stand. For example if you have the children and there are no orders then that is the end of it.

    • Ricky Couto

      thats so true, thats a joke i see your pain i got the same, my pain is that my ex partner put an AVO with pure lies so can’t get access to them
      all the best luck

  • mariya poll

    Me and
    my friend were arguing about an issue similar to this! Now I know that I was
    right. lol! Thanks for the information you post.

    http://www.mlhlaw.com/

  • Trudi Jane

    Yes… the system is a joke. Represent yourself and then fight to win. FTW. Be the spokesperson for your own child because the legal world of monsters do not CARE for anything but your money.

    • Father

      So true…it’s all about money, judges so often look at who’s paying the most for their solicitor/lawyer

  • Father

    Defintely still favours the mothers in Australia…we’re in 2016 and women have equal rights in just about anything they like, where’s the equality in our Family Law Act!
    Too many mothers out there doing anything and everything to restrict or aleinate fathers.

    • Sharon White

      shame that this happens 50/50 child right to have both parents

    • Dani

      I’m in that position right now I’m restrict my baby dad for reason his currently heavily on drugs and don’t want my precious baby boy round that kind of shit not all mothers out there are bad but some fathers don’t deserve to see there kids

    • Robert Basso

      I AGREE 1000000000000%. WE HAVE FEELINGS TOO. My Ex loves having this power over me. It just sucks 😔

    • Damian Cullen

      Thats so true. It’s even worse when the mother is using the child to hurt the father. They know their relationship is over and nothing that happens to her will hurt him, so denying access to the father is a sure fire way of getting that emotional reaction they wanted for themselves.

  • Alex

    What about when the father yells at the child (5) for saying she has 2 dads (step dad) and is verbally abusive over the phone to both mother and child does this factor in or do I need to record the abuse as it happened often we’ve been seperated for a few years

    • Grandmother

      I would be.

    • Gun Bullety

      Why are you infuriating him so much?

  • Tiffiny Chalmers

    Hi to all. I am after some advice. My son has recently been to interrelate and is the father of a 10 month old baby girl.
    The mother refused to put him on the birth certificate so she could get parenting payment single.
    She is refusing to allow him to see the baby and recently lodged a fictitious avo against him. The police withdrew the avo as when they investigated it was all proven false.
    The mediators have told him the best he will get is to be able to see his child for maybe 1-2 hours in the mothers presence maybe every two weeks.
    Is this right? I just can’t believe this could be. Does anyone have a similar story?

    • Leann Bulloch

      Hi
      I’m in the same vote here. My son has a 14 month baby girl and the mother has given birth to her second child, which is refusing to put him on the birth certificate. We have just started seeing a solicitor, which is taking forever to see action. All my son is wanting is to see is his daughter, until the dna has been completed i have no hope in seeing something happen here. How can someone be so cruel and not given the father the rights to see his daughter. I would love to hear more of your story?
      Sad Grandmother

    • Thomas S C Brown

      You’re best bet would be to get your son to do a Paternity/D.N.A test. Then apply for a Parenting Order.

  • Sharon White

    why are the childs rights taken away in xourt if there is no danger to the child 50 / 50 custody regardless child best intrest to have both parents equally in all matters

  • nga

    im an aunty to a new born nephew just needing some advice at what the father has rights to as my brother. can someone help

  • Dani

    Just wondering as I’m currently carrying my ex bf child and his drug addicted and my ex mother n brother are too his my trying to get custody does she have rights too if his not name on the birth certificate

    • Trudi Jane

      They have no hope I can hell. This is your child, ignore them, move away. Have no contact with these people and live your own life happily ever after

    • Alana

      If name is not put on birth certificate then in most cases no. However court automatically assumes that your ex is in the father if you were living together for a certain amount of time, are married etc. Also, you can’t claim for child support if ex’s name is not down on birth cert.

  • Gypsy

    I’d like to see fathers expected to have not only “shared responsibility” but the expectation that they will have an equal share of TIME parenting too. I would like to work more but the kids dad basically refuses to have them more…giving the excuse “i need to mow my lawn” ha ha! I’d be happy if it was 50/50 financial, time (care) and responsibility….THAT is what would feel fair! I have a right to work and move about the world without being forced to care for our children while he works when he pleases and has them when he pleases!

  • Glenn

    Hi i want to know, who gets the custody of child if child is less than 2 years old and child can not live without his mother. Mother is a full term employee and father’s taxable income is less than mothers.

  • Lily Dove

    Thanks for writing on child custody. It is a very sensitive matter. This has to be dealt with utmost care. Please keep updating.
    Child Custody Lawyers Sydney

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  • Gordon Smith

    I became a dad 3 weeks ago to a beautiful girl we called Alexis. Her mother broke up with me 6 weeks ago and in that first 2 days I had 15 hrs with them. All up that first week I had 22 hrs with my daughter, now after 3 weeks and one day I’ve had a grand total of 33 hrs with my daughter and I’ve never been out of sight of one of the mothers family members. I have no history of violence, drug or alcohol abuse. I’ve been to see Relationships Australia and she has her appointment mid June. So our daughter will be over a month old before she has her first appointment let alone the 2 more appointments we need before mediation can start. Surely this isn’t legal and what can I possibly do to speed up the process?

    • Thomas S C Brown

      My lil girl’s mother did the same thing to me bud, the other party can only “refuse/delay” it 2 times (in nsw that is & it’ll be about a month between appointments) before the mediation service like “relationships aus” will write you “Cert 60i”, then you can fill-out/lodge a parenting order through the Family Courts (Assuming you’re on the birth cert of your lil girl). I went to mediation hoping for 50/50 custody of my lil girl, offered up 4 different ‘Plans/options’ (not all 50/50) for the mothers consideration, she knocked back all of my proposed plans. Not one possible idea was put forward by her, and the mediators basically told me to prep myself for a long drawn out process. but the silver lining of that is that if she breaches the Court Ordered Parenting Order (with out an acceptable excuse), she’s accountable for it and that’ll weigh heavily in your favour regarding any court proceeding further down the track.

      Here’s a handy link to get you started bud:
      http://www.federalcircuitcourt.gov.au/wps/wcm/connect/fccweb/family-law-matters/parenting/if-you-cant-agree-on-arrangements/if-you-cant-agree-on-arrangements

      Best of luck with it mate and hope you get to see you youngen soon.

    • Alana

      I’m afraid, not much.. my partner is in the same situation and has seen his daughter once for 30 minutes a few days after her birth. It’s now 6 months later and he’s still had no contact and won’t have contact until after November when the court orders contact. Try and bypass mediation if there are issues with neglect, d.v, drug and alcohol abuse etc and take it to court asap. Also, make sure you figure out whether your name has been listed on birth certificate etc, otherwise you may need to have a paternity test ordered to establish parenting rights. The test will cost about $1000.

  • megan griffith

    I’ve been alienated from my child, by my controlling in laws. My husband has Aspergers and didn’t care. I don’t do drugs and rarely drink alcohol. Yet I’m only getting 6 hours a week with her, supervised. Please help.

  • Robert Basso

    Hi, my name is Robert, I have a beautiful son who I love so much, he is 4 and a half years old… Me and my ex wife broke up when he was 1. I am an amazing father that strives to have my son as much as possible… he constantly asks me if he can stay with me and stay over at night. At this point my son sleeps over 2 nights out of 14 and I get him a little during the week… I would love to have him a lot more. My ex has always said when he is older that I can have him more… Yesterday she just told me she will never agree to it…
    My question is:
    When both parents are loving and dedicated 150% to their child, at what age can both parents get the child 50% of the time? It even me 45% ond her 55%?
    Thanks for your time😃

    • Paul Muddyman

      Hi Robert, in regards to your question I can give you the outcome of my case which hopefully should give you the answer your after, I was awarded 45% custody of my 4 year old daughter in an intensely high conflict case which spanned 15months with the final trial lasting for over 5 consecutive days in court, all of which was instigated by my ex partner who did not want me to have any custody of our daughter so every possible allegation of physical abuse, drug abuse, mental abuse were made against me. As to the reason for the decision made allowing me 45% time with my child was because of two seperate court councillors both stating in there reports to the court that over the course of there 25years experience as a councillor they had never seen a father and daughter under the age of 5years old hold such a close and meaningful bond which would of meant the father must of had a large part of the child’s upbringing since birth so any less than 45% time allocated to the father would not be in the best interests of the child. I was later told by my barrister that I was the first father ever to gain that much custody of a 4year old girl in such a high conflict case. So yes you can have a larger percentage of time with your child at such a young age but if your ex partner isn’t willing to consent to those orders then you have a much higher percentage of proof to show that it would be in your sons best interests to spend more time with you other than the time that already exists.

  • Jason Wells

    My 13 yo son wants to live with me but his mother won’t allow it there is no legal arrangement in place as to where he should live and I have weekend and holiday custody ATM can my son just leave and move in with me without his mothers consent

    • Thomas S C Brown

      As long as you’re on the birth certificate as his father there is nothing, legally (based off what you’ve said), stopping him from living with you.

  • Deidre Walker

    If my kids want to live half with each parent but one parent says he is not prepared for all 3 to come live with him and he’s girlfriend is this fare or should he step up and be a father and take on more responsibility , shouldn’t he’s kids come before him and he’s lifestyle , where do I stand and the kids ?

  • Timothy stewart

    Its a joke the mother is always in favour they get to make all decisions and they say its the children’s best intrest not to see to their father makes me sick that a bunch of pencil pushers get to judge peoples lives with a bunch of lies and say to me that my issues arent reality what about my kids reality when they want to spend more time with me their father the law and the court system needs a good wake up call when will fathers be compensated for lost time with their children instead the government puts their hand out for child support is that their meaning for compensation it is disgusting degrading and totally sexest

    • Ricky Couto

      agreed think that needs to be petition regarding the mothers using the kids for they own advantage

  • Timothy stewart

    Its not the children’s best interest its more like the mothers best interest

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  • Maddi B

    My ex hospitalized me during pregnancy my daughter is 3 months and I am in hiding with her.. he always threatened to leave the country with her and used to keep me isolated from my family every time I left he went haywire threatening and harrassing my whole family.. I have aspergers and I am scared he his a huge manipulator he is very aggressive towards women and I have proof with my social worker who has met him.. he scared her so bad the security guards had to step in.. I am about to go to court about it.. he keeps saying he will get her one way or another.. I have a voice recording of him admitting to touching me when I didn’t want it my family have texts from him.. I’m scared for my childs safety shes 3 months.. is there any way he could still get unsupervised visits.. I am only 19 hes 32 so hes a much better talker than I am

  • MANNY Reynolds

    My nephew has separated from his girlfriend and they have two girls. He is a dedicated father and his daughters adore him. Unfortunately the ex-girlfriend is an absolute horrible person who denies him access to his kids out of pure spite. If she is having a bad day or just has the shits with him, she will deny him visitation to his girls and she doesn’t even care if the girls are crying because they want their dad. To top it off, she is a rubbish mother. Anyone recommend a good lawyer?

    • Ricky Couto

      thats crazy, i feel his pain,

  • Leah

    A friend of mine has a son (4 yrs old turning 5) who is currently under the care of his grandmother (my friend`s mother) thru arrangement with DOCS. The mother of the child surrendered him to DOCS voluntarily so she is aware of the arrangement and is in regular contact with her son, thru the grand-mother. My friend is currently incarcerated and is due to be released late 2019. The mother and father of the child have an amicable relationship. My friend’s intention when released is to be able to look after his child. What can he do now (whilst in gaol) to start these proceedings?

  • This is very informative blog about the child custody. Thanks for sharing with us!

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  • Hayley Dennis

    Hi, currently have a parenting plan decided amicably between my sons father and I at the time that we have 50/50 7 days with me then 7 days with dad. I think this arrangement needs to change when our son starts school because his dad lives 55 minutes away from me. So i asked his dad if we could change the agreement so that out son is with me monday to friday and with his dad every weekend and school holidays. Hes dad said no and refuses to make any changes and wants us to find a school halfway but that’s alot of travel for a little boy. Wondering if I have grounds to fight this.

    • Alana

      Speaking from experience here. Given that you’ve been able to agree on things up till now which shows you can co parent relatively well together, you would probably be better off compromising and finding a school half way. That way you can retain your peace of mind rather than engaging in a lengthy court battle which will cost you time, money and huge amounts of stress. 25 minutes isn’t that bad for a young child to be travelling and they can usually cope with it at the age of 5 or so. The worst that will happen is that he may fall asleep in the car.

  • David Apat

    Not sure if my ex has had a child she has a new partner but the child is at the age when we were together how can i find out if in fact she has had a child and get her dna because i have no contact with her but i need to know if she has had a child and if its mine

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