What are Australia's Child Custody Laws?

July 9, 2015

how_does_the_law_affect_you_child_custody_graphic

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.

no_fault_divorce_definition_blog_graphic

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”

family_law_childs_best_interests_definition_blog_graphic

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

  • 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

  • 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

  • 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

Speak to a Lawyer
Complete confidentiality 100% guaranteed. Take a look at our privacy policy.