How to Apply For Full Child Custody in Australia? (2024 Latest Guide)

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How to Apply For Full Child Custody in Australia? (2024 Latest Guide)

Child custody is one of the most critical factors in family law. Custody arrangements can incorporate one or both parents. The Court prefers both parents to have an equal say in a child’s life. However, sometimes it may be best to provide one parent with all the duties of parental responsibility, known as full child custody. Let’s look at sole parental responsibility and how it’s granted.

Key takeaways

  1. The Family Court prefers parents maintain equal shared parental responsibility.

  2. Both parents will typically receive equal or substantial time with their children.

  3. Sole parental rights give one party complete control of a child’s life decisions.

  4. There are several reasons why the Court may grant sole parental responsibility;

    • Evidence of family violence or abuse;

    • Substance abuse or mental health issues;

    • Neglect or disinterest.

  5. Alternative dispute resolution is a crucial step in parenting arrangements. Before seeking parenting orders for sole custody, mediation can help create better opportunities for the children involved.

  6. If mediation fails, there’s a legal process for applying for sole parenting responsibility.

Equal Shared Parental Responsibility in the Family Law Act

The Family Law Act 1975 assumes that equal parental responsibility in parenting arrangements is in the child’s best interests. This principle states that both parents will have an equal say in major life decisions in the child’s life. This may include decisions about education, health and religious instruction. Equal parental responsibility doesn’t imply that each parent will have equal time with the child.

When crafting a parenting court order, the Family Court will opt for equal or substantial and significant time for each parent. Substantial time means that while the child may live with one parent, the other parent will spend time with them on:

  • Weekdays;

  • Weekends;

  • Holidays;

  • Events of special importance to the child, such as birthdays.

Photo of happy family

Sole parental responsibility

Sole parental responsibility gives one parent complete discretion to make decisions for a child. They can decide on education, health matters and religion. They may also determine what the child’s living arrangements are. Sole responsibility doesn’t necessarily mean the other parent has no visitation rights. Contact with both parents is still encouraged by the law.

We have written a blog that discusses Child Custody Laws in Australia. You can find it here.

Reasons for sole responsibility

Evidence of Family Violence or Abuse

Suppose there’s credible evidence that a parent’s involvement would risk the child’s safety, welfare, or psychological well-being due to abusive behaviour. In that case, the Court may decide that sole parental responsibility to the other parent is necessary.

Key considerations include:

  1. Type and Severity of Abuse. Physical, emotional, or sexual abuse and its impact on the child.

  2. Evidence and Documentation. Credible evidence supporting the claims of abuse.

  3. Risk Assessment. Evaluating the potential future risk to the child.

  4. Child’s Views. Depending on age and maturity, the child’s views may be considered.

  5. Other Factors. Overall parenting capacity, history of family violence, and any protective measures in place.

Substance Abuse or Mental Health Issues

Evidence of substance abuse or mental health issues can justify the Court granting sole parental responsibility. This is particularly true if these issues impact the parent’s ability to safely and effectively care for the child.

Key considerations include:

  1. Impact on Parenting Ability. How substance abuse or mental health issues affect the parent’s capacity to provide safe, stable, and nurturing care.

  2. Risk to Child’s Safety and Well-being. Assessment of any immediate or long-term risks to the child’s physical and emotional well-being.

  3. Treatment and Management. Whether the parent with issues is seeking treatment and how effectively the condition is being managed.

  4. History and Evidence. The extent and duration of the issues and any documented evidence or professional assessments.

  5. Other Parenting Factors. The ability to meet the child’s needs includes emotional support, stability, and guidance.

Neglect or Disinterest

If a parent demonstrates a lack of interest or neglects their parenting responsibilities, it may lead the Court to determine that sole parental responsibility to the other parent is in the child’s best interest.

Key considerations include:

  1. Child’s Safety and Well-being. Neglect or disinterest that compromises the child’s safety, health, or emotional development.

  2. Consistency and Stability. The child’s need for consistent care and a stable environment.

  3. Parental Engagement. The extent of each parent’s involvement in the child’s life and willingness to take on parenting responsibilities.

  4. History of Parenting. Past behaviour and the level of commitment each parent shows towards parenting duties.

  5. Impact on the Child. How the parent’s disinterest or neglect has affected the child’s well-being and development.

non explicit child abuse (1)

For immediate help, feel free to get in touch with us for a free consultation. 

Alternative Dispute Resolution

Alternative Dispute Resolution (ADR) involves several key components, especially when trying to avoid sole parental responsibility:

  1. Family Dispute Resolution (FDR). FDR involves a neutral third-party mediator helping parents negotiate parenting arrangements.

  2. Mediation Sessions. The mediator facilitates structured discussions where parents can express their views and concerns.

  3. Communication Improvement. ADR aims to improve communication between parents, which is crucial for effective co-parenting.

  4. Developing a Parenting Plan. Parents work towards a mutually agreeable parenting plan detailing living arrangements, decision-making, and child-rearing aspects.

  5. Legal Advice. While ADR is less formal than Court, obtaining legal advice can help parents understand their rights and options.

  6. Child Inclusive Practices. Some ADR processes involve professionals specialising in understanding and articulating the child’s perspective.

  7. Follow-Up Sessions. Some ADR processes may include follow-up sessions to adjust the parenting plan as needed.

Benefits

Seeking ADR methods in Australian family law offers several benefits. A family dispute resolution conference allows one to avoid the need for sole parental responsibility.

  1. Reduces Conflict. ADR fosters cooperation, reducing conflict and stress for both parents and children.

  2. Child’s Best Interests. Encourages decisions focused on the child’s best interests rather than adversarial court outcomes.

  3. Saves Time and Money. Generally, it is faster and less expensive than court proceedings.

  4. Improves Communication. It helps parents develop better communication skills for future co-parenting.

  5. More Control. Parents have more control over outcomes, unlike court-imposed decisions.

  6. Confidentiality. ADR processes are private, unlike court cases, which can become public record.

  7. Flexibility. Solutions can be more creative and tailored to the family’s unique needs.

  8. Preserves Relationships. It can help maintain amicable relationships, which is essential for effective co-parenting.

  9. Emotional Well-being. A less adversarial nature reduces emotional strain on all parties involved.

  10. Compliance. Agreements reached mutually are more likely to be adhered to than court orders.

AFL - couple in law court

Applying for Sole Custody

  1. Legal Advice. First, seek legal advice to understand your rights and the process.

  2. Family Dispute Resolution (FDR). Before Court, you must attempt FDR unless exemptions like family violence apply.

  3. FDR Certificate. If FDR fails or is exempt, you’ll receive a certificate to proceed with court action.

  4. Court Application. Prepare and file an application with the Federal Circuit and Family Court of Australia.

  5. Documents and Evidence. Include detailed reasons for seeking sole responsibility, focusing on the child’s best interests.

  6. Serve the Other Parent. Legally deliver court documents to the other parent, allowing them to respond.

  7. Interim Orders. If immediate decisions are needed, apply for interim orders.

  8. Family Report. The Court may order a family report by a consultant assessing the family situation.

  9. Court Hearing. Present your court case with evidence supporting why sole responsibility is in the child’s best interest.

  10. Comply with the Court’s Decision. Follow the Court’s final orders.

a woman talking to a lawyer for a full child custody

Conclusion

The Family Law Act 1975 emphasises equal shared parental responsibility. It values both parents’ involvement in major decisions in the child’s life. However, circumstances like abuse, substance abuse, mental health issues, neglect, or disinterest can lead to sole parental responsibility. This is to prioritise the child’s safety and well-being.

Alternative dispute resolution offers a less adversarial approach, fostering cooperation and potentially avoiding the need for sole custody. Any court decision or agreement ultimately serves the child’s best interests. This ensures their stability and healthy development.

If you require assistance with child custody, please contact Andrews Family Lawyers.

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Peter Andrews - Andrews Family Lawyers 4
Principal Solicitor

Peter Andrews

Peter is a qualified legal practitioner with more than twenty years experience, predominantly in family law. Peter began his career with Clayton Utz, before moving into suburban practice in 2007 with a focus on family law settlements.

Peter began his own practice, Peter Andrews Lawyer Pty Ltd, in 2013. After many years of success, the business was rebranded Andrews Family Lawyers in 2022.​

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Principal Solicitor
Peter Andrews - Andrews Family Lawyers 4
Peter Andrews

Peter is a qualified legal practitioner with more than twenty years experience, predominantly in family law. Peter began his career with Clayton Utz, before moving into suburban practice in 2007 with a focus on family law settlements.

Peter began his own practice, Peter Andrews Lawyer Pty Ltd, in 2013. After many years of success, the business was rebranded Andrews Family Lawyers in 2022. ​

Peter is a married father of three young, precocious and often annoying children who are still just lovely.