Following a divorce or separation, the custody of your children would likely be on your mind.
If you are worried about the welfare and safety of your children, you should do everything in your power to try and protect them from a partner who is violent, abusive or simply a negative influence.
The following article will discuss the custody of children in Australia, how it is determined and what the Courts consider in awarding custody
Going To Court To Determine Custody Of Children
Suppose you and your former partner were to proceed to Court to determine the custody of your children. In that case, the starting point of the Court’s decision-making process is to assume that you are both on even footing and entitled to an even share of involvement in your children’s life.
This is what is known as the presumption of ‘equal shared parental responsibility’.
However, what you need to know about this presumption is that it is considered ‘rebuttable’. This means that given sufficient evidence of harmful or irresponsible conduct by one spouse towards their spouse or children, the Court may refuse to recognise one parent’s equal-shared parental responsibility rights when making parenting orders.
The Best Interests Of The Child Factors
When determining the custody of children in Australia, The Family Court will refer to a set of legal factors contained in the Family Law Act 1975 known as the ‘Best interests of the child’.
These factors are the primary considerations when determining parenting arrangements, including the custody of children.
Under Section 60CC of the Family Law Act, the main factors considered are:
1. The benefit of the child having a meaningful relationship with both of their parents; and
2. Whether there is a need to protect the child from any psychological or physical harm, abuse, family violence or neglect, they may be subjected to
Both of these factors are considered in unison as a form of balancing act. The second of these two will be given more weight if the element is present.
The Best Interests Of The Child Other Factors
Generally speaking, the primary factors mentioned will be the most decisive in determining the custody of children. However, every parenting arrangement matter is different, and accordingly, some of these ‘other factors may be considered of significant importance.
Here is a set of other factors that will be considered:
- The views and opinions of the child;
- The relationship the child has with their parents or grandparents;
- The attitude of each parent;
- The level of participation each parent has had with their child in the past;
- Any special needs of the child and the ability of each parent to meet those needs;
- Where the child goes to school;
- The ability of both parents to facilitate an ongoing relationship with one another;
- If there is family violence involved, or a family violence order in place; and
- Other characteristics of the child such as their maturity, lifestyle, background;
What You Need To Know About Parenting Arrangements
The Family Court of Australia has the power to make parenting arrangement orders concerning:
1. Parental responsibility (custody); and
2. Care time (such as visitation rights)
Section 61B of the Family Law Act 1975 provides that ‘Parental responsibility, concerning a child, meals all the duties, powers, responsibilities and authority which, by law, parents have about children.”
In layman’s terms, what this means is that both parents have the responsibility to care for and protect their children, which includes:
- Protecting your children from harm;
- Providing your children with adequate financial support;
- Ensuring the medical and educational needs of your children are met;
- Ensuring your children are fed, clothed and have shelter; and
- Ensuring your children are adequately safe and supervised.
Can The Other Parent Relocate With Our Child?
Whether the other parent may relocate to another State or even Country with your children is a significant issue when it comes to the custody of children.
Fortunately, suppose your parenting orders provide that your child/children are entitled to spend time with both you and the other parent. In that case, they cannot relocate or even travel overseas for a holiday without obtaining your permission. If the parents cannot agree, the next step would be for the parent seeking to relocate to apply to the Court for the travel or relocation arrangements.
In determining whether to grant the application, the Court will refer to the best interests of the child factors.
Importance of Seeking Legal Advice
When discussing matters such as the custody of children, it is essential to note that every situation is different. Accordingly, some factors will be much more important in one case and unimportant in another.
If you would like to discuss your particular matter, please feel free to reach out to our team of friendly and experienced Family Lawyers. We are happy to help.
Here at JB Solicitors, we’ll make the process as pain-free as possible. We have fixed-fee pricing for family law, giving you a clear sense of the costs from the start, and we will be sure to help you out every step of the way.
With years of experience under our belt, we pride ourselves on making each client’s family law experience as positive as possible.
Contact JB Solicitors today to speak with one of our friendly and experienced family lawyers.
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