Who gets custody of a child in Australia and what rights does the father have?
These are two of the most sensitive issues a family law solicitor can be asked when counselling before divorce takes place.
Australian child custody laws are often complex and difficult to navigate. Under the Federal Circuit and Family Court of Australia, priority in family law cases is always to protect the best interests of the child.
However, provision made by a court’s ruling (or orders) can sometimes follow prolonged and demanding negotiations.
In this article – we’ll give you a simple, easy to understand explanation of:
- How child custody arrangements may be decided
and how you might be advised to consider the main issues of:
- Mother versus father’s parental rights
- Parental Plans versus Parental Orders and individual responsibilities
Speak directly now to Dianne Grace.
Our experienced, compassionate family law and divorce lawyer will listen and advise on your specific child custody needs and concerns.
Australia’s Child Custody Laws – what you need to know
Following a divorce or separation it’s often assumed an Australian court will always give custody of a child to the mother.
However, under the Australian Family Law Act 1975, and its amendment in 2024, the court takes the view that it’s in the best interests of the child to:
- Maintain a meaningful relationship with both mother and father
This is most important if the child is a minor – under 18 years age.
Parental Responsibility – what this means in practice
Parental responsibility basically refers to the obligations, and duty of care both parents have in bringing up their children.
The responsibility is regardless of whether parents are married, simply living together or, otherwise, in a relationship. It also means that both parents are able to make decisions about looking after their child independently of one another.
However, a family court will also hold it has a greater concern to place:
- Protection of the child above shared parental responsibility
The court will remove shared parental responsibility in cases where a child is determined to be in need of protection from potential harm by one or both parents.
It’s IMPORTANT to know:
Most divorcing or separating couples will eventually reach an agreement. Particularly on issues involving:
- Which of the parents will make decisions for the child
- Whether the child will live with the mother or the father, and
- When and for how long the other parent spends time with the child
What happens if an agreement is not reached?
If a separating couple are unable to reach an agreement, a more formal action will need to be taken, which consists of TWO options:
• Parenting plans
• Parenting orders
Parenting plans – a written and non-coercive agreement (signed and dated) between the parents, which sets out responsibilities and arrangements for a child or children. It may also involve other people if the child lives or spends time with grandparents.
Parenting orders – a legally enforceable arrangement that details very specific instructions, including:
- Who the child can live with
- Time spent with each parent
- Decision-making powers for the child, and
- Type of communication with each parent
Only around 1 in 25 (less than 5 per cent) will go to a family court to seek formal custody of their child*.
Around 1 in six (16 per cent) of couples, however, will need to seek assistance from legal counsel / family lawyers*.
*Source: The Australian Institute of Family Studies (AIFS)
The advice, counselling and mediation of an experienced family divorce lawyer is crucial at the outset, and at every stage.
Considering divorce? But worried about child custody and/or spousal maintenance?
Discover more about our specialist family mediation and divorce lawyer services.
The father’s rights to child custody – what the courts consider today
Family Law Amendment (Shared Parental Responsibility Act) 2006
There’s a traditional view in Australia that the father never gains custody of their child, and yet, always expected to pay child support. Plus, visiting rights are often strictly limited under parental orders.
This is no longer necessarily the case.
It’s a view likely to have formed from before the Family Law Amendment (Shared Parental Responsibility Act) was introduced in 2006.
The Act aimed to reverse a perceived bias, which usually did give child custody to the mother. Even if the father was the primary care-giver before separation and divorce.
Since the Act came into force, and as we highlighted earlier in this article, the Australian courts are today more focused upon:
- Establishing the equal sharing of parental responsibility in deciding future care and needs of the child after separation.
Changes to the traditional family unit
This is also because of the changes to the traditional family unit. People are now having children later, parenting alone or not at all.
Latest available figures from 2021* show:
- Over a quarter (26 per cent) of Australian households are one-parent families.
Of which:
- 80 per cent are single female parent households, and
- Male lone-parent families on fastest growth of 40 – 69 per cent by 2046
*Source: Australian Bureau of Statistics (ABS), June 2024
5 key factors courts consider for awarding child custody
When deciding child custody arrangements a family law court will consider:
- Child’s best interest
- A parent’s capacity to care
- Desire to co-parent
- History of abuse or harm
Child’s best interest
The No.1 concern, which considers a child’s age, individual relationship with mother and father, and each parent’s ability to provide a safe and stable environment.
A parent’s capacity to care
Which looks separately at the mother and father’s individual ability to meet the child’s emotional, physical, and developmental needs.
Key factors include:
- Home environment
- Financial stability
- Work commitments, and
- Family other support network
A court’s decision over which parent to award full custody will also take into account if either the father or the mother is shown to have a problem with:
- Substance abuse
- Mental health or
- History of neglect, abuse or violence
Desire to co-parent
There must be a genuine desire shown to co-parent. This means a real willingness to create a positive relationship between the child and the other parent.
Any attempt to cause the child to have harmful, negative thoughts about the other parent will count against a parent’s case at court.
History of abuse or harm
Evidence of abuse or violence by either parent towards the child can significantly increase the likelihood of the other parent obtaining full custody.
Summary
Today, shared parental responsibility for the care and well-being of a child is the general view held for a couple who seek to separate or divorce in Australia.
Most couples will try to reach their own agreement. A parental plan is drawn up over shared parental responsibility without resorting to the family courts for a parental order to be imposed.
A parental order is a legally enforceable arrangement of strict conditions which must be followed.
Australian family law courts will always place protection of the child above shared parental responsibility if there is a history of abuse or violence.
Awarding full child custody in a family law court will be determined by considering key factors of child’s best interest, a parent’s capacity to care, desire to co-parent and a history of one or both parent’s abuse or harm.
FAQs
Q: What’s the most common child custody arrangement in Australia today?
A: An arrangement known as “joint custody”, which is focused upon both parents making key decisions over their child’s upbringing, including time spent with each parent.
Q: How much access is a father entitled to in Australia?
A: Under The Family Law Act, May 2024, “a child has a right to be known and cared for by both parents.” This means a father has equal parental rights to see his child, unless there are concerns over safety.
Q: Can a mother stop a father from seeing a child?
A: In Australia, a mother cannot, by herself, stop a father from seeing their child. If there are concerns over potential harm – both physical and psychological – the mother must obtain a court order.
Q: At what age in Australia can a child decide which parent they want to live with?
A: No specific age, although a child aged 12 years and above may be given greater consideration. Much will depend on their ability to properly understand what’s actually taking place.
Decisions over child custody, future care and wellbeing need to be handled sensitively every step of the way.