Sometimes we get questions about shared parental responsibility and how to get sole custody of children in Australia.
Generally, courts in Australia grant equal and shared parental responsibility at the end of a divorce or parenting settlement. But what if you believe that you should get sole custody of your children in Australia?
Or what if circumstances have changed in your and your ex-partner’s life and you believe it would be better for your children if you had sole custody?
In this blog, we cover the ins and outs of how to get sole custody of children in Australia including the grounds for seeking sole custody and the implications for the sole custodian of the children.
What does sole custody of children mean?
Sole custody refers to the arrangement when one person has sole responsibility for a child’s day-to-day care.
This means that a parent or other person has full legal and physical custody of the child and is responsible for making decisions on the child’s behalf.
In Australia, if you and the other parent cannot come to an agreement on custody, then either parent can apply to the court for a custodial order.
Before making a decision, the court will need to be satisfied that such an order is in the best interests of the child.
Grounds for sole custody of children in Australia
As mentioned above, at the time of divorce or parenting matter, the court presumes that shared custody of the children is in their best interest, and will usually grant shared custody.
This usually means that both parents are involved in making important decisions concerning the children. It also means that the parents both care for the children financially, emotionally, socially and both parents spend certain amounts of time with the children, as per the parenting agreement.
Sometimes, however, circumstances change, and a parent may feel that it is not in their children’s best interest to spend time or be exposed to the other parent.
In those cases, the parent can get sole custody of children in Australia by approaching the court to change the ruling on the parenting agreement, which we will cover in a later section. In order to challenge the ruling however, there are certain elements that need to be present to be considered as grounds for seeking sole custody. Similarly, a parent undergoing a parenting settlement in the court will need to rebut the presumption of shared custody with reasonable grounds. These include:
- Substance or alcohol abuse
- A history of family violence
- Current family violence
- Severe mental illness that affects the ability of the other parent to care for children
- A complete inability to communicate with the other parent
It is important to keep in mind that when making these allegations within court, the onus is on you to prove it and provide convincing evidence. This will include documents such as affidavits from you and potential witnesses.
How to apply for sole custody of children in Australia
In Australia, applying for sole custody of children is a legal process that involves several steps.
Here are the general steps to apply for sole custody in Australia:
- Seek Legal Advice: It is recommended to seek legal advice from a family lawyer who can explain the legal process and your options. They can also advise you as to your prospects of success in obtaining sole custody of children in Australia.
- Negotiate with the other party: If you are able to, you are able to negotiate or mediate with the other party to try and come to an agreement about sole custody. If this does not work, you will have to proceed to the next step.
- Complete the Application: To apply for sole custody, you need to file an Initiating Application, which can be obtained from the Family Court of Australia or the Federal Circuit Court of Australia. The application form will ask you for details about your relationship with the other parent, your children, and the reasons why you are seeking sole custody. You will need to complete an affidavit detailing all of the facts of the case.
- File the Application: Once you have completed the application form, you must file it with the court.
- Serve the Other Parent: After filing your application, you must serve a copy of it on the other parent. This means providing them with a copy of the application and a notice of the court date.
- Attend Court: The court will set a date for the first court hearing. Both parents will be required to attend court and present their case. The court may also appoint a family consultant to speak with both parents and the children and provide a report to the court.
- Mediation: If the court thinks it is appropriate, they may refer the parties to mediation to try and resolve the matter before the court hearing.
- Final Hearing: If the matter cannot be resolved through mediation, a final hearing will be held. Both parents will be required to attend court and present their case. The judge will make a decision based on the evidence presented.
To get sole custody of your children in Australia, challenging the presumption that shared custody is in the best interest of children is what you need to do while you’re in the midst of a divorce and or parenting settlement with your ex partner.
To learn the details of filing for a divorce and parenting application, read our guide on the family court system here. You will have to prove to the judge that it is in the children’s best interest that you be awarded sole custody.
When do people get sole custody?
If you want to get sole custody of children in Australia, you will need to know what a court is looking for when making orders for sole custody.
Sole custody is usually only granted in situations where it is in the best interests of the child. Here are some situations where the court may consider awarding sole custody:
- Domestic Violence or substance abuse: If a parent has a history of domestic violence or substance abuse, the court will consider granting sole custody to the other parent to protect the child from any harm.
- Child Neglect: If one parent is neglecting the child’s basic needs, such as providing food, shelter, or medical care, the court may consider granting sole custody to the other parent.
- Parental Alienation: If one parent is attempting to alienate the child from the other parent, the court may consider granting sole custody to the non-alienating parent.
- Inability to communicate: If one parent is unable to communicate with the other parent, the court may consider granting sole custody to the primary carer.
It’s important to note that the court will always consider what is in the best interests of the child when making decisions about parenting arrangements, and every case is different.
What rights does a parent with sole custody have?
When a court orders sole child custody, it grants the parent who has the sole custody the authority to make all major decisions regarding the child’s long-term welfare and to limit the involvement of the other parent in the child’s life.
The parent has exclusive control over the child’s upbringing and the level of visitation allowed for the other parent.
What do Judges look for in Child Custody Cases?
A judge will look at what is in the best interests of the child and follow the factors as stated in s60CC of the Family Law Act.
Get sole custody of Children in Australia after parenting orders have been issued
Sometimes, families separate and the parenting orders that the judge issues work well for the parents and children indefinitely. Sometimes, however, circumstances change. A person with no history of substance abuse or violence can begin engaging in erratic and worrying behaviours that make the other parent concerned about their child.
If that’s you, know that you can challenge the current parenting orders. If you feel that your child or children are in serious danger when they’re with your ex partner and feel that withholding them from that person is necessary to their wellbeing, read our article on withholding a child from a parent in Australia. We also recommend involving a family lawyer to support you in this difficult circumstance.
The next step will be to file a new application for a parenting order with the Court. As specified earlier in this article, it will be your responsibility to prove that your ex is endangering the welfare of your child.
Another option that can ensure the safety of your child but allows them to have a relationship with their other parent is supervised visitation. Supervised visitation is when a third party is present when your child spends time with the non-custodial parent, and may be involved in the handing over of the child from you to the other parent and vice versa.
Important considerations when attempting to get sole custody of children in Australia
If the safety of your children hinges on your ability to get sole custody, then we strongly recommend that you pursue that route.
However, we would like to point out that sole custody means increased responsibility for you. As the sole custodian of the children, you will have to make all decisions pertaining to your children’s long term well-being and development repeatedly, and on your own.
It is a good idea to make your new responsibilities easier by ensuring you have a strong network to support you if things get difficult. If you work, make sure you make arrangements so that your children are properly looked after when you’re absent. Most importantly, make sure that you care for yourself adequately so you can continue to be there for your children.
Principal of Justice Family Lawyers, Hayder specialises in complex parenting and property family law matters. He is based in Sydney and holds a Bachelor of Law and Bachelor of Communications from UTS.