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.
Meaning
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 agree 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.
Also read: Do You Need Both Parents' Signatures for a Passport Australia?
Grounds
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, and 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. To challenge the ruling, however, certain elements 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.
Application
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 can 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.
Also read: Co-Parenting With Different Religions: All You Need to Know
When Do People Get 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.
Also read: Should Separated Parents Share Travelling? 7 Things to Know
Rights 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.
Can a Parent With Sole Custody Change a Child's Name?
A parent with sole parental responsibility in Australia cannot unilaterally change a child's name without either the other parent's consent or a court order. Here's why:
- Births, Deaths and Marriages (BDM): Each state's BDM registry handles name change applications. They generally require consent from BOTH parents with parental responsibility unless specific exceptions apply.
- Presumption of Equal Shared Parental Responsibility: Even if you have sole parental responsibility, changing a child's name is considered a major long-term issue. The law presumes both parents should be involved in such decisions unless there are strong grounds for excluding a parent.
It's important to note that you can't just assume you can change the child's name even with sole parental responsibility. Court orders or specific state BDM exceptions may be necessary.
Factors the Court Might Consider
- The Reason for the Change: Protecting the child from harm, fostering a stronger bond with the primary caregiver, or other compelling reasons may sway the court.
- The Child's Views: The court will take the child's wishes into account, depending on their age and maturity.
- Potential Detriment: Whether the name change could cause significant emotional distress or confusion for the child.
- History of Abuse or Neglect: If the other parent has a history of harming the child, the court is more likely to permit the name change.
Tips When Getting Sole Custody
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 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 child custody 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 allow them to have a relationship with their other parent is supervised visitation.
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 about 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.
Does the Primary Carer Have More Rights in Australia?
The "primary carer" refers to the parent who takes on the majority of the child's day-to-day responsibilities. While this role may influence certain decisions, such as the child's living arrangements, it does not inherently provide superior legal authority over major decisions in the child's life. Both parents generally share equal parental responsibility unless the court orders otherwise.
Shared Parental Responsibility
Australian law presumes that it is in the child's best interests for both parents to have shared parental responsibility. This means both parents should collaborate on major decisions, including education, health care, and religious upbringing. The presumption of shared parental responsibility applies unless there are concerns about family violence, abuse, or neglect.
Practical Implications for the Primary Carer
Although the primary carer does not have more legal rights, their role often affects practical aspects of parenting arrangements. Courts may consider factors such as:
Continuity of Care: The stability and routine provided by the primary carer can weigh in favour of maintaining current arrangements, especially for younger children.
Emotional Bonds: The closeness between the child and their primary carer may influence the court's decisions on the child's living arrangements.
Practicalities: The primary carer's ability to meet the child's everyday needs, such as schooling, medical care, and extracurricular activities, is also a key consideration.
If disputes arise, mediation or court proceedings may be necessary to resolve disagreements and formalise arrangements. Parents are encouraged to focus on fostering a co-operative parenting relationship that prioritises the child's welfare.
Evidence To Present On How to Get Sole Custody of a Child in Australia
It requires substantiating evidence demonstrating that the child's best interests are met under your care.
- Evidence of Stable Environment: You should provide proof of the child's stable and secure living environment. This includes a suitable home, access to quality education, and a supportive community.
- Child's Wishes: Depending on the child's age and maturity, the court may consider their wishes. Direct statements, written documents, or testimonies from a child psychologist can serve as evidence.
- Proof of Parenting Capability: It is crucial to provide evidence of your ability to meet the child's physical, emotional, and educational needs. This can involve medical records, school reports, and character references testifying to your parenting skills.
- History of Care: A documented primary caregiver history can enhance your case. This includes proof of involvement in the child's daily routines, school activities, medical appointments, and more.
- Evidence of Harm or Risk: If the other parent poses a risk to the child due to factors such as drug abuse, neglect, or violence, it's essential to present evidence like police reports, medical records, or testimonies from witnesses or professionals.
- Parenting Plan: A well-detailed parenting plan demonstrating how you intend to cater to the child's needs can show your commitment and preparedness for sole responsibility.
Are you seeking sole custody of your children in Australia?
Let Justice Family Lawyers guide you through this complex process with expertise and compassion.
Our dedicated team understands the intricacies of family law and is committed to advocating for your rights and the best interests of your children.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
