The thing is, the word “custody” is not used in the Family Law Courts in Australia. In Australia we call the equivalent of custody – “Parental Responsibility”.
The starting point is an initial presumption that both parents have Shared Parental Responsibility. We often get asked the question, what does that actually mean?
Parental Responsibility of a child means that the parent has responsibility for making major long-term decisions, such as what school the child would go to or any medical procedures the child is to undertake.
Equal Shared Parental Responsibility is when both parents are tasked with that decision-making.
We must distinguish Parental Responsibility from time spent with the parents. Equal Shared Parental Responsibility doesn’t mean equal time!
The starting presumption of Equal Shared Parental Responsibility is overturned if there has been abuse of a child or family violence.
Child violence is defined as physical maltreatment or sexual molestation of a child.
Family violence can be a number of things, including:
- an assault,
- a sexual assault or sexually abusive behaviour,
- repeated derogatory taunts,
- intentionally damaging or destroying property,
- intentionally causing death or injury to an animal,
- unreasonably denying your partner finances,
- unreasonably withholding financial support needed,
- preventing the family member from making or keeping connections with his or her family, friends or culture, or
- depriving your partner of their liberty.
A child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
The courts automatically take the view that both parents should have equal Shared Parental Responsibility unless it can be shown that one parent should not have Parental Responsibility – in this instance the court will grant Sole Parental Responsibility to one parent.
Once there is a determination on Parental Responsibility the court will then consider the appropriateness of each parent spending time with the children, and how much time is appropriate considering their best interests.