There are no hard and fast rules when it comes to family law in Australia, particularly in relation to issues concerning children. The first thing parents should know is that terms like child “custody” and “contact” are not used in Australian family law, instead these concepts falling under the umbrella term of “parenting matters.”
Parenting matters include “parental responsibility” which refers to who has legal responsibility for the children and major long term decisions about their lives as well as day to day decisions. It also includes the time parents spend with their children and who their children live with.
It is important that following a separation, parenting arrangements are put in place to give children a sense of safety and security. If you and your former spouse cannot agree on parenting arrangements, you may need to approach the court for orders concerning your children.
This article provides an in-depth understanding of child custody laws in Australia, focusing on the nuances of parenting matters, parental responsibilities, and the best interests of the child in family law.
Parenting “Rights” and Best Interests of the Child
When making parenting orders, the court’s paramount consideration is the “best interests of the child.” Parents should understand that whilst Australian law recognises that children have a right to have a meaningful relationship with both of their parents, ultimately the need to protect children from harm, whether physical or psychological, arising from being subjected to or exposed to neglect, abuse of family violence is given greater weight.
This means that although the benefit of a child having a relationship with both parents is a primary consideration, the greatest weight must be given to protecting the child from harm. Accordingly, parents do not have the right to spend time with or make decisions about their children, rather parents have responsibilities in relation to their children and it is the children who have the right to spend time with their parents provided this can be done safely.
Equal Shared Parental Responsibility
In Australian law, there is a presumption that it is in the best interests of the child that both parents have equal shared parental responsibility. Parents should know, however, that this presumption is rebuttable and does not apply when a parent has engaged in family violence or the abuse of any child within the family. Further, parents need to understand that having equal shared parental responsibility does not translate to equal time.
Just as equal shared parental responsibility does not equate to equal time, there is no rule in Australian law that children should spend equal time with each parent. Instead, the court will consider a range of factors to determine what is in the best interests of the child when it comes to who the children live with and who they spend time with. As well as considering the need to protect the child from harm and the benefit of having a relationship with both parents, the court will also consider secondary factors when determining who a child lives with and spends time with. These factors will depend on the circumstances of the family and could include:
- Any wishes expressed by the child and their age and level of maturity
- The child’s relationship with each parent, including the nature and history of that relationship
- Practical considerations such as where each parent lives, where the children go to school and where extended family live
- Each parents’ ability to provide for the emotional and intellectual needs of the child
Parents also need to know that regardless of who their children live with after separation, both parents have the responsibility to financially support those children. Further, it does not matter what kind of relationship, if any, the parents previously had, and it does not matter how much time the children spend with each parent post separation. If a parent seeks a child support assessment, Services Australia also known as the Child Support Agency consider matters such as you and your former partner’s income, your child’s age and the amount of time you and your former partner care for the child.
Your Child’s Wellbeing
Although separation is an emotional and often uncertain time for parents, it can be particularly hard for children when their parents separate. It is important that you and your former spouse think carefully about your children’s needs and focus on doing what is best for your children. If you and your former spouse can agree on parenting arrangements, these can be formalised in a Parenting Plan or Consent Orders. If you cannot agree on a way forward together, you may need to engage in mediation or the court process to either agree on arrangement for your children or for a Judge to determine what is in your children’s best interests.
Dettmann Phair Lawyers: Your Ally in Family Law Disputes
At Dettmann Phair Lawyers, our experienced solicitors are child-focused and have assisted hundreds, if not thousands, of parents over the years to resolve their parenting matters.
If you would like to formalise your parenting arrangement or are experiencing difficulties in coming to an agreement with your former spouse, please do not hesitate to contact us.
For legal advice and representation on your family law matter, please send us an email or call us at 02 9412 4500 to schedule a consultation.