How to get sole custody of your child in Australia

A bad spouse does not mean a bad parent. It is important to remember that sole custody and parental responsibility are different and should not be confused between each other.

In Australia, the 1975 Family Law Act stipulates that the parents of each children under 18 years of age has the same parental responsibility for children unless otherwise specifically ordered by a court. Seeking either sole parenting or sole custody orders from court can restrict visitation access for the other parent but may not necessarily remove their responsibility and input in making important life decisions for that child.

Equally shared parental responsibility

As previously mentioned, because of the legal presumption of equal shared parental responsibility, courts are subject and required to act under the presumption that shared parental responsibility is in the best interests of the child.

However, with a rebuttal – sufficient evidence to indicate evidence of irresponsible and harmful conduct from one parent to the child – the court can choose to ignore one parents shared responsibility when making parenting orders.

Sole parental responsibility

As issues relating to divorce have evolved over time, so too has proceedings in the Family Court of Australia, where these proceedings take place. Prior to the mid 1990’s, if parents did not wish for their former partner to retain custody rights of their child, a parent could apply for sole custody in court. Overtime, this term has been phased from use within family law. Sole parental responsibility orders are now made.

If the parent’s safety for a child changes or if that parent believes their child may be in threat during contact or via responsibility placed on the other parent, a court application to vary the parenting order can be made. This can be done even after the initial parenting order has been issued.

For the court to grant you with sole parental responsibility, a person will be required to provide the court with a full report on all details related to the claim. This may include police reports or other witness statements, evidence indicating a total breakdown in communication between both parents or children and indicators showing that shared joint parents will create more problems than a sole custody parenting order. Mental and physical health conditions of each parent may also be an important relevant factor.

Sole custody

In some cases, a push for sole custody or a sole parenting order can be made. Because courts aim to preserve the right of children to have contact with both parents these have been phased out and are currently, no longer used within the family law system. The only way such an order will be given is when sharing responsibility and custody is not the best interest for the child and hence, is inappropriate. In these instances, proof that the child would be exposed to danger if the parent is allowed access would be required. This could be in the form of police reports or other witness statements. Keep in mind that the mental and physical health of each parent may also be a relevant factor.

Even in situations where contact with one parent can be dangerous, organised arrangements for supervised contact can still be made. Alternatively, a third party such as grandparents or a nominated family member can also be included access.

How to apply for parenting orders

Put simply, a parenting order is a judgement made by a court regarding the parenting arrangements of a child. These can either be made by approving negotiated agreements between both parents, via a consent order, or after a court hearing or trial when agreements cannot formally be established without intervention. After a parental order has been made, each parent is bound to follow that ruling. Ideally an agreement will be made without court intervention, and simply require approval. When this occurs, legal costs are minimised.

Seeking legal advice

As with any important decision and negotiation, seeking the right help is important. Family lawyers have the knowledgeable expertise and understanding to help you reach an agreement, and in some instances, without the need to go to court. Quality legal advice and information to assist in child custody issues is available from O’Sullivan Legal.

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