Child custody laws in Australia, the process for application, and how decisions are made in the courts.

The breakdown of a relationship or marriage is an emotionally charged and challenging time, especially when children are involved. In Australia, the laws surrounding child custody aim to protect the well-being of the child and uphold their best interests. 

Terminology Shift: From 'Custody' to 'Parenting Orders

Australia has moved away from the terms 'custody' and 'access'. Instead, the Family Law Act 1975 (Cth) uses phrases like 'parental responsibility', 'live with', and 'spend time with'. These changes underscore the principle that decisions should prioritize the child's best interests.


The Concept of Parental Responsibility

Parental responsibility refers to the duties, powers, responsibilities, and authority parents have concerning their children. Unless a court states otherwise, both parents share equal parental responsibility, which requires them to consult one another on significant decisions like education, health care, and religious matters.

What Happens After Separation or Divorce?

a. Agreement Between Parties: After a breakup, if both parties agree on parenting arrangements, they can draft a 'parenting plan'. This written agreement isn't legally binding but serves as a mutual agreement between the parties.

b. Disputes: If parents cannot agree, either can apply to the court for 'parenting orders'. Before doing so, they are usually required to attempt family dispute resolution.

Applying for Parenting Orders

a. Family Dispute Resolution (FDR): Before applying to the court for parenting orders, most parties need a certificate from an accredited FDR practitioner, indicating they attempted to resolve the dispute.

b. Initiating Application: If FDR doesn't resolve the dispute, or in cases where it's inappropriate (like instances of family violence), parties can initiate a court application for parenting orders.


Who Gets 'Full Custody'?

In Australia, there's no presumption that mothers or fathers have a greater right to 'custody'. The primary determinant is the child's best interests. Factors include:

  • The child's views (depending on age and maturity).
  • The nature of the child's relationship with each parent.
  • The willingness and capacity of each parent to facilitate and encourage a close relationship between the child and the other parent.
  • The need to protect the child from physical or psychological harm.
  • The capacity of each parent to provide for the child's emotional and intellectual needs.

The Court Process

a. Interim and Final Orders: Initially, the court might make 'interim orders' about the child's arrangements. These temporary orders remain in effect until the court can make final orders.

b. Less Adversarial Trial: Family law proceedings prioritize a less adversarial trial process, focusing on the child's best interests, rather than the disputes between the parties.

c. Final Hearing: If parties can't agree, the matter proceeds to a final hearing, where the judge considers evidence, including reports from family consultants or other experts, and makes a decision.


Changing or Enforcing an Order

Once an order is in place, it's legally binding. If circumstances change, or if one party isn't complying, you might return to court to seek variations or enforce the order.

Child custody laws in Australia centre on the well-being and best interests of the child. Whether parents come to an agreement outside of court or require legal intervention, understanding the framework and process is crucial.