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How can custody of children be determined?


CM Law's Ultimate 50 List - Separated Couples FAQ #4:
How can custody of children be determined?

Introduction

Determining child custody is a sensitive and complex process governed by family law in Australia. In NSW, the Family Law Act 1975 and the Children and Young Persons (Care and Protection) Act 1998 provide the legal framework for making custody decisions. The court's primary concern is the child's best interests, which include factors such as the child's safety, well-being, and the ability to maintain meaningful relationships with both parents. This article explores the criteria for determining child custody, the legal processes involved, and what happens when parents cannot agree.

Factors Considered in Child Custody Determinations

1. Best Interests of the Child

The paramount consideration in all custody decisions is the child's best interests. Courts assess a range of factors to determine what will best support the child's health, safety, and welfare. These factors include:

  • The child’s relationship with each parent: The court considers the nature and strength of the child's relationship with each parent, including the ability of each parent to provide for the child's emotional and intellectual needs.
  • Child’s views: Depending on the child’s age and maturity, their wishes may be taken into account. However, the court balances this with the child's best interests.
  • Impact of changes in circumstances: Stability is crucial for a child's development, so the court evaluates the potential impact of any changes to the child’s living arrangements.
  • Parental responsibilities: The court examines how each parent has previously fulfilled their parental responsibilities and their willingness to continue doing so.

2. Family Violence and Child Safety

The presence of family violence is a critical factor in custody determinations. The court prioritizes protecting the child from physical or psychological harm and considers any history of family violence or abuse when making custody decisions. This includes assessing the risk of exposure to such environments in the future.

3. Ability to Co-Parent

The court also evaluates each parent's ability to facilitate and encourage a meaningful relationship between the child and the other parent. A parent's willingness to cooperate and communicate effectively with the other parent is seen as beneficial to the child's well-being.

4. Practical Considerations

Logistical factors such as each parent's living situation, work commitments, and the proximity of the child's school and community play a significant role in custody decisions. The court aims to minimize disruption to the child's daily routine and maintain continuity in their education and social life.

Legal Process for Determining Custody

When parents cannot agree on custody arrangements, the court becomes involved. The legal process typically includes the following steps:

1. Filing an Application

The custody determination process begins with one parent filing an application with the Family Court of Australia or the Federal Circuit Court of Australia. This application outlines the desired custody arrangements and any relevant concerns about the other parent's ability to care for the child.

2. Mediation and Family Dispute Resolution

Before proceeding to court, parties are generally required to attempt mediation or Family Dispute Resolution (FDR). These sessions aim to help parents reach an agreement without court intervention. A qualified mediator facilitates discussions, helping parents find common ground and resolve disputes amicably.

3. Court Hearing

If mediation fails, the matter proceeds to a court hearing. During the hearing, both parents present evidence supporting their proposed custody arrangements. This may include testimonies from witnesses, psychological evaluations, and reports from child welfare professionals. The court considers all evidence and makes a custody determination based on the child's best interests.

4. Issuance of Court Orders

Once a decision is made, the court issues parenting orders that outline the custody arrangements, including who the child will live with, visitation schedules, and how parental responsibilities are to be shared. These orders are legally binding, and failure to comply can result in penalties.


The following case study is a creative attempt by CM Lawyers to illustrate and educate the issues which may arise in a real court case. The case, characters, events, and scenarios depicted herein do not represent any real individuals, organizations, or legal proceedings.


Case Study: Complex Child Custody Dispute in NSW

Case Overview

In the case of Re the Matter of Smith & Jones [2020] NSWSC 789, a contentious child custody dispute arose after the separation of the parents, both of whom sought sole custody of their two children. The dispute highlighted the emotional and financial toll that protracted legal battles can impose on all parties involved. This case underscores the importance of focusing on the child's best interests and seeking early resolution to avoid prolonged litigation.

Behaviour of the Participants

During the proceedings, both parents displayed high levels of emotion and desperation. The mother, deeply concerned about the father's past aggressive behavior, expressed her fear of leaving the children unsupervised during visitation. She detailed instances of what she perceived as neglect and emotional abuse, which she believed placed the children at significant risk.

The father, equally desperate, painted a picture of being unjustly alienated from his children. He claimed that the mother had systematically undermined his relationship with the children, limiting his contact and poisoning their perception of him. His emotional plea highlighted the heartbreak and frustration of a parent who feels unfairly cut off from their children’s lives.

Legal Process and Court Involvement

Faced with these conflicting narratives, the court undertook a detailed examination of the evidence. This included psychological assessments of both parents and the children, testimony from family members, and reports from child protection services. The court found that both parents had made mistakes but noted that neither parent posed an immediate danger to the children.

The court ordered supervised visitation for the father, allowing the children to gradually rebuild their relationship with him in a safe environment. It also mandated family counseling to address the communication issues and emotional tension between the parents.

Financial Consequences

The financial costs associated with this custody battle were substantial. Both parties incurred significant legal fees, with the father spending over $120,000 and the mother $150,000 on legal representation and court costs. The family home, valued at $1.2 million, was ultimately sold to cover these expenses, resulting in a significant reduction in the children’s inheritance and the financial stability of both parents post-separation.

Lessons Learned

This case highlights the importance of early intervention and dispute resolution in child custody matters. The emotional and financial toll on families can be devastating, and the child’s best interests must always remain the primary focus. Parents are encouraged to seek mediation and cooperate to reach amicable agreements wherever possible.

Statistics

  1. Custody Disputes in NSW: Approximately 30% of family law cases in NSW involve disputes over child custody.
  2. Mediation Success Rates: About 70% of custody disputes are resolved through mediation without the need for court intervention.
  3. Family Violence Orders: In NSW, around 45% of custody cases involve allegations of family violence, requiring additional court oversight.
  4. Time to Resolution: On average, contested custody cases in NSW take 12-18 months to resolve through the court system.
  5. Legal Costs: The average legal costs for contested custody cases in NSW range from $50,000 to $200,000 per party.
  6. Impact on Children: Studies show that children involved in prolonged custody disputes are 25% more likely to experience emotional and behavioral problems.
  7. Parenting Orders: Approximately 85% of court-issued parenting orders in NSW grant joint custody or shared parental responsibility.
  8. Reunification Efforts: In cases involving supervised visitation, about 60% of parents successfully transition to unsupervised contact within two years.
  9. Use of Expert Witnesses: In 40% of contested custody cases, the court relies on expert witnesses such as psychologists and child welfare professionals.
  10. Appeals: Less than 10% of custody decisions are appealed, with most appeals focusing on procedural errors or new evidence.

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