What are Australia's Child Custody Laws?

What are Australia’s child custody laws?

Editor's Note: This article was originally published in July 2015 but has been updated in order to provide the most current and up to date information.

Well, we can start by saying they’re definitely contentious. The debate about their fairness floods Internet forums, online news comment sections and dinner tables across the nation. Are mothers favoured? Do fathers 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, what are the laws and how are they subject to interpretation by the Court? We’ll cover some of this, and more, to help you understand more about Australia’s child custody laws.

A big and complicated issue, we’re taking the time to dedicate this blog to include informative, jargon-free stories and factsheets about child custody, child support and family law.

Let’s start with some context about the legislation of Australia's Child Custody Laws.

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.

Divorce or separation is rarely easy. When children are involved it can become a whole lot more complicated. Because at CM Lawyers your appointed solicitor will be working closely with you on your case, you’ll be able to get the best child support outcome for you and your family.

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? 

During a divorce or separation, 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”

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 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 parent's 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 don't 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.

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Editor's Note: This article was originally published in July 2015 but has been updated in order to provide the most current and up to date information.

Thank you for reading this article, please note that this content is accurate at the time of posting but is not updated regularly. The content throughout this site should be viewed as informational and informative but not considered legal advice. We cannot guarantee that any of the information on the website is current and laws are regularly changing. For more accurate information or to obtain proper legal advice, please contact our office today.