Child Custody & Parenting FAQ
Can I get custody of my child?
The term “custody” is commonly used when considering what parenting arrangements should be made for your children. In Australian family law the term “custody” is not used. Instead, Australian family law focuses on what is known as the “best interests of the child”.
What are parenting orders?
Parenting orders are a set of directions made by the Family Court about parental responsibilities. Parenting orders should cover issues such as parental responsibility, living arrangements, time spent and communication and any other aspect of the care, welfare or development of a child. This may include religion, education, medical, travel and other issues as appropriate.
What needs to be considered when making parenting orders?
When considering parenting arrangements, it is essential to think about the “best interests” of children.
What are the “best interests” of a child?
The “best interests” of a child have a particular meaning in family law. The best interests of the child are the most important consideration when thinking about particular arrangements. Australian family law considers the best interests of children are met when:
- Children are protected from physical violence, harm, abuse, neglect or violence;
- Children have the benefit of having a meaningful relationship with both parents;
- Children receive adequate and proper parenting;
- Parents fulfil their duties and meet their parental responsibilities.
What does the Family Court consider when deciding what are the child’s best interests?
The Family Court have “primary” and “additional” considerations, which consider things such as:
- The benefit of the child having a meaningful relationship with both parents;
- The need to protect the child from harm;
- Any views expressed by the child;
- The child’s relationship with each parent;
- Each parent’s ability to facilitate the child’s relationship with the other parent;
- The likely effect of any change in the child’s circumstances;
- The practical difficulty and expense of the proposed arrangements;
- The capacity of each parent to provide for the needs of the child;
- The maturity, sex, lifestyle and background of the child ;
- Each parent’s attitude to the child and to the responsibilities of parenthood;
- Any family violence involving the child or a member of the child’s family;
- Any family violence order;
- Any other fact or circumstance that the Court thinks is relevant.
What is shared parental responsibility?
When making a parenting order, unless there are reasonable grounds to believe a parent has engaged in family violence or abuse of the child (or another child who is a member of the parent’s family), the Family Court must apply the presumption that it is in the best interests of the child for his or her parents to have equal shared parental responsibility.
Can the presumption of shared responsibility be rebutted?
The presumption may be rebutted when the available evidence satisfies the Family Court it would not be in the best interests of the child for an order for equal shared parental responsibility to be made.
Do I need to attend Family Dispute Resolution (FDR)?
Anyone seeking parenting orders from the Family Court must attempt to resolve their dispute before the Family Court will accept their application. This process is called compulsory Family Dispute Resolution (FDR). There are also certain situations where an application can be brought without attending FDR.
What if agreement can’t be reached at FDR?
If you are unable to reach agreement through FDR you can obtain a certificate. You may then file an application with the Family Court.