Sole ‘Custody’ of Children in Australia

What is often referred to as ‘custody’ of children is known as ‘parental responsibility’ under the Australian family law system. ‘Parental responsibility’ is presumed to be held equally by the two parents of a child. This means under the Act, each parent of a child under 18 has equal parental responsibility for those children, unless otherwise ordered by a court. Many separating parents, however, seek a ‘sole parenting’ or ‘ sole custody ‘ order from the court to restrain access by the other parent. This article deals with sole parental responsibility orders.

The concept of parental responsibility in Australia is defined under ‘Division 2 – Parental responsibility’ of the Act. Section 61B defines the term as being “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.” Under this definition, the legal duties and powers provided to parents will include:

• making decisions as to the children’s upbringing, religion, and education;
• taking any reasonable disciplinary measures in relation to the children;
• consenting to the children being adopted;
• applying for a passport or visa for the children;
• instituting legal proceedings on behalf of the children.

‘Equal Responsibility’ held by both parents

As mentioned, there is a legal presumption that “equal shared parental responsibility” is held by both parents for any children of their relationship who are under 18 years of age. This means that when granting a parenting order, the Court is required to act subject to a presumption that shared responsibility is in the “best interests of the child”. Section 60CC provides extensive directions to the court regarding what matters should be considered when determining what is in the children’s ‘best interest’.

This presumption of shared responsibility is considered ‘rebuttable’, i.e. given sufficient evidence of irresponsible or harmful conduct by one spouse toward either their children or their spouse, the court (under section 60CG) may refuse to recognise one parent’s shared responsibility when making parenting orders.

It should be noted that the term ‘equal shared parental responsibility’ only relates to “allocation” of parental responsibility for a child. This does not mean that both parents will necessarily be allocated an equal amount of time to spend with their child. Similarly, a ‘sole parenting’ order might only extend to certain aspects of the children’s lives.

For example, one parent might be given sole custody with respect to the education and religious involvement of the children, but share parenting for all other matters.

Seeking Parenting Orders

Where a separating couple cannot agree on how to parent the children after separation, they might call upon the Federal Circuit and Family Court of Australia (FCFCA) to decide certain matters in relation to the children. The FCFCA will, after hearing submissions from both parents, hand down ‘Parenting Orders’. These are only made, however, after the parties have attended a Family Dispute Resolution Conference at which a mediator will attempt to bring the parties to an agreement. A ‘parenting order’ differs from a ‘consent order’, which is a written agreement between the parents that is submitted to the court and becomes legally binding.

Parenting orders provide for how the responsibility for the children is to be carried after their parents have separated. Importantly, each parent continues to carry full parental responsibility for every child until such time as the court expressly varies that responsibility. While the Court may acknowledge shared parenting responsibility, that acknowledgement does not presume to dictate the amount of time the children are to spend with each parent.

Sole Parenting Orders or ‘sole custody’

Before 1995, parents who did not want their former spouse to have access to their children would ask the court to grant what was formerly known as sole custody of those children. This is no longer the case and this term is no longer used within the family law system. With parenting responsibility presumed under the Act, a parent may seek an order from the Court for ‘sole parental responsibility’ which may once have been similar to an order for sole custody. The court will only give such an order where it believes that the presumption of equal shared responsibility for the children is not appropriate, i.e. not in the best interests of the children.

An order for ‘sole parental responsibility’ may provide one parent with:

1. sole responsibility for some, or all, areas of their children’s lives, without the need to consult their former spouse with respect to those responsibilities specifically ordered by the court;
2. providing that the children are to live with one parent exclusively; and
3. the extent of contact with the former spouse.
This order is not likely to totally disallow one parent from access to their children unless it can be shown the children would be exposed to danger if that parent is allowed access.

Even where the parent may present some level of danger to the children, an order for ‘supervised contact’ may still be made. The order may also indicate access for third parties such as grandparents and other family members.

Parenting orders may be made on an ‘interim’ basis or a final basis, but both may be amended upon later application to the Court. It should be noted that the Court is expressly instructed under the Act to disregard the terms of any interim order when making the final order.

How to have the court order ‘ sole custody ’ of children

The Act specifically provides that when making parenting orders, the Court must consider the risk of exposing the children to violence [sections 61DA(2-4)]. Also, under Section 60CF, the children’s best interests must be considered with respect to any ‘family violence order’ in place to protect the family from the abuse of one parent. This section also provides that any person may inform the court of the existence of a such an order, i.e. the person does not need to be a party to the proceedings to advise the court.

Should the court believe that shared parenting in a particular case is not in the children’s best interests, it has the power to make parenting orders to vary which parent has responsibility for the children. These orders might include a ‘sole parental responsibility’ order that gives one parent full decision-making powers in relation to the children – in effect, an order granting sole ‘custody’ of the children to one parent. (Again, this term is now considered colloquial and is not used in a legal context.) The effect of this is that the responsible parent will not be required to consult with their former spouse with respect to any decisions made about the children.

Any parent who is concerned that their children’s safety may be under threat when in the company of their other parent should apply to the court to vary the Parenting Order appropriately. This may be undertaken even after an initial Parenting Order has been issued.

In order to have the court provide ‘sole parenting’ or ‘sole custody’ responsibility to one parent, that person will be required to provide the court with a full report on all matters relevant to their claim against the other parent. This might include evidence of police reports or other witness statements; evidence of a total breakdown in communication between the parents, or any indicator demonstrating that joint parenting would probably create more problems for the children than a sole custody parenting order. The mental and physical health of each parent might also be a relevant factor.

Go To Court Lawyers have a team of Family Law experts ready to advise and assist with the application for a sole custody order and all subsequent implementation processes. Call the Go To Court Lawyers Family Law Team on 1300 636 846 as soon as possible and make an appointment to get any custody issues dealt with in a professional, family-friendly atmosphere.

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