When it comes to sensitive issues such as children’s matters, things between parents can often get contentious. On top of having to deal with a stressful separation, both children and parents also have to go through the lengthy process of issues relating to all things related to family law and children’s matters, which can often be a somewhat traumatic experience for all involved. When it comes to children’s custody laws, there is a lot of confusion involved. Debate about their fairness often floods internet forums, news articles and dinner tables across the nation. So, how exactly are children’s matters determined in Australia? Well, today, we have a look at what the laws involved are as well as how the court makes its decisions regarding this sensitive yet incredibly important issue.
Understanding the Family Laws Act
The first thing that one needs to wrap their head around is the Family Laws Act. Australia’s child custody laws fall under the Australian Parliamentary Family Law Act, 1975. This act is the main Australian legislation that oversees issues concerning divorce/separation, child custody and financial maintenance that involves children of couples who have been divorced or separated. If any dispute or arguments should arise about the custody arrangement, the starting point is Section 65E of the Family Law Act.
What Parents Need To Know
If you are a separating parent, there are several things that you need to know. The following list entails all the issues and matters that you will need to familiarise yourself with:
Parental responsibilities include the welfare of children, day to day decision making, sending children to school and ensuring that they are kept healthy, both mentally and physically.
Adoptive parents have equal rights to biological parents.
Both parents are responsible for financial upkeep and care of children, regardless of whether parents were or have been romantically involved.
Even if parental responsibilities may be split equally, this does not always mean that you will be guaranteed an equal split in time shared with your children (in terms of custodial arrangements).
In cases involving domestic violence or sexual abuse, the court has every right to completely revoke a parent’s rights to see their children or be involved in their upbringing.
Parents may be granted joint custody, even if children reside with only one parent.
Lastly, the court is obliged to make their final decision on who a child lives with based on the child’s overall best interests.
Age: The younger a child is, the more hands-on care and time they will require. The Court will often look into issues such as the bond a child shares with each parent and often favour the primary caregiver when it comes to children's matters. In older children, the court will also consider who the child would prefer to live with.
Routine: Divorce is already a stressful and messy process, which is why Courts prefer to ensure that a child’s routine is as unaffected as possible. This includes school, living arrangements and anything else that is consistent in a child’s life. Generally, a judge will try their best to limit any changes that may negatively impact a child’s mental health.
Parenting Ability: Parenting ability plays a huge role in the Court’s decision when it comes to children’s matters. Evidence is often required to prove that a parent is genuinely able to meet the child's physical and emotional needs. These needs include shelter, food, clothing, education, medical care, emotional support and guidance. A parent’s mental and physical health may also play into the final decision that is made by the Courts.
Safety: Safety is always the top priority in family court. If a child’s safety is proven to be compromised, the courts will readily deny custody to either or even both parents.
Understanding the Interim Parenting Hearing Process
When it comes to children’s matters, it is always favourable that both parents come to an amicable decision in order to avoid having to go to court. In support of this, changes to the Family Law Act 1975 now require parents to attend family dispute resolution before applying for parenting orders. If you and your ex-partner cannot come to an agreeable decision, you can then choose to apply for interim orders. An interim hearing is a brief hearing where temporary orders pertaining to custody are made whilst you wait for a final decision. Before filing an application for a parenting order, the applicant is required to obtain a certificate from a family dispute resolution practitioner. Do keep in mind that the Court will change arrangements on a temporary basis only if there is an urgent need to do in order to minimise the amount of disruption caused to the child’s routine.
The Final Decision
Sadly, it can often take up to a year for more for the Courts to come to a final decision on parental custody. A final hearing is usually conducted and based off issues such as an applicant’s evidence, cross-examination of both witnesses, an expert report from a family consultant or mental health professional, an assessment on a child’s overall psychological and physical health and a final submission where the court gives you an opportunity to voice out any further comments you may have in support of your custodial case. Following your hearing, the Courts will reserve its final decision for a later date. Interim orders that are in place will continue to remain in force during this waiting period. It can take up to 6 months or even longer before the Court finally hands down its Judgement. When that time comes, the Court will make Orders on a final basis and will provide a justification for those Orders, also known as a Judgement. The final decision is a legally binding one, and parents have to abide by it until children reach the age of 18 years old.We hope that this article has given you some valuable insight into how children’s matters are determined in Australia.
Impact of COVID-19
We understand that in these unprecedented times you may need to speak to a lawyer.
We are available for conferences in person (ensuring appropriate social distancing is adhered to), by telephone or by email depending on your individual needs and circumstances.