Child custody in Australia is handled with the best interests of the child kept in mind at all times. Following a marital breakdown, the court system seeks to ensure that a child’s access to basic necessities like food, clothing and education are met while also allowing them to pursue a meaningful relationship with both of their parents post-divorce.
Kids have an inherent right to a relationship with both of their birthparents. This can come into conflict as one or both parents don’t want to the other to have access to the Kids.
This is where the stereotype of desperate fathers fighting for access to their kids come from. Often times, these cases are portrayed as a vindictive mother denying her ex-husbands right to have a relationship with his Kids because she wants to punish him for leaving the marriage.
While all stereotypes have some layer of truth to them, these cases are often exaggerated and never really play out the way you see them in film and television. Commonly believed myths, such as women being favoured by courts over men, are perpetuated and fail to look at child custody in Australia with an adequate level of nuance.
No matter if the parents are married, de factor, adoptive or same-sex – the same rules apply to the care of children post-separation.
The following will take a look at the elements of how child custody in Australia is dealt with.
The ‘best interests of the child’ principle
The ‘best interests of the child’ is a legal principle used in the family court system to determine parenting arrangements where disputing ex-spouses are unable to reach a compromise. What constitutes the ‘best interest ‘is whatever arrangement gives kids full access to the lifestyle they were previously enjoying as well as uninterrupted access to education.
A kid’s best interests also include their ability to have a meaningful relationship with their parents. This means that, even if you and your ex don’t ever want to see each other again, you can’t let this prevent your kids from getting the benefit of both parents in their lives.
When dealing with child custody in Australia, in cases where there is evidence of abuse, it’s in a kid’s best interests to have their relationship with the abusive parent limited. Up to a certain age, kids don’t have much say in what constitutes their own best interests – however, it is hard to force a 16-year-old to accept a certain parenting arrangement if they don’t want to, so teenagers generally have more leverage in court about where they end up.
Child support payments
The parent who is determined to be the primary caregiver can make a request for child support from their ex-spouse. Support payments do not need to be mandated by a judge if the parents are able to negotiate an arrangement privately – but if they can’t then a calculation is made to determine how much one parent needs to pay the other.
The amount of child support one parent pays is meant to offset the fact they are not acting as a primary caregiver. While they don’t have primary responsibility for the everyday welfare of the child, they are still required to contribute to their welfare either through regular payments or a lump sum.
Dealing with a difficult dispute over child custody in Australia
A dispute over child custody in Australia that’s gone on for a long time and has built up bitter resentment between you and your ex-spouse can be extremely emotionally draining. Sometimes, it may even be necessary to take the matter to court if you genuinely can’t reach a negotiated settlement with your ex.
Whether you choose to pursue advanced negotiation tactics such as alternative dispute resolution or go to litigation, you need an experienced family lawyer on your side. With their counsel and understanding of legal specifics, they can advise you on the best course of action to secure an outcome that’s beneficial for you and your Kids.
At O’Sullivan Legal, we take the principle of ‘best interest of the child’ very seriously because we care about the impact divorce can have on innocent kids. We know that our clients also care deeply about this impact and want to minimise the harm their dispute causes their kids.
If you are dealing with a dispute over child custody in Australia or any other family law matter, get in touch with O’Sullivan today so we can discuss your options!