There are many reasons one parent is compelled to make the difficult decision of applying for sole custody of their children. As mentioned in our article on child custody in Australia, although the family court will always do what is in the best interest of the child, sometimes what is best is for one parent to have more responsibility than the other.
Sole Custody, Full Custody.. What Does It Mean Exactly?
Many people understand sole and full custody to mean that the children live and stay with one parent. This term is no longer used by the law, or by the courts. As you will see below, the terms have taken on more defined meaning.
Sole Parental Responsibility
In Australia, when one parent applies to have more decision-making rights for their children, it falls under the legal term of “parental responsibility”. When a parent applies to have all decision-making rights, the legally recognised expression is “sole parental responsibility”. This arrangement means that under the law, one parent has all or more say in how their children are brought up.
How children are brought up in this regard, is defined according to section 61B of the Family Law Act 1975 (the ‘Act’) under parental responsibility. Parental responsibility means all the duties, powers, responsibilities, and authority which, by law, parents have concerning their children. The exact extent and limitations of this responsibility can be found under Division 2 of the Act and encompasses decisions like what religion is observed and what school is attended.
How parental responsibility is shared can be decided either:
- by an informal parenting plan that is agreed to with consent of both parents and approved by the court;
- by formal consent orders that are agreed to with the consent of both parents and submitted to the court for legal effect; or
- by intervention of the court whereby parenting orders are made by a judicial officer after all available evidence is considered.
As parental orders are legal rulings, parents can face serious penalties if these orders are not followed. It is important to note however, that consent orders can be varied at a later stage and are not necessarily permanent once made. Parental orders are capable of being amended if circumstances change.
When applying for additional or sole parental responsibility, you are essentially asking the court to grant you more or total control of how your children are brought up and how they live their lives on a short or long term basis.
It is important to note that this is not an approach the courts take lightly, nor is it an arrangement easily made.
Time Spent Together
The other side of child and parenting arrangements, relate to the actual physical time spent together. This is the more commonly understood part of ‘custody’. This request for more or all time with the child is made through the same avenues as parental responsibilities, and subject to the same considerations as outlined below.
Best Interest Of The Child
In 2006 Australia passed the Family Law Amendment (Shared Parental Responsibility) Act 2006 which changed the approach the courts take when assessing ‘custody’, care time, and parental responsibility. One of the most important doctrines to emerge from this amendment is the principle of the “best interest of the child”.
Under this presumption, parents share an equal responsibility by default until an order is made otherwise. This presumption is based on the idea that is it better for the child to have regular and meaningful contact with both parents. However as mentioned above, sometimes it is in the best interest of the child for one parent to have a bigger role.
Pre-action Dispute Resolution – Before You Go To Court
In most cases, before an application can be made for additional parental responsibility or more care time, the law requires both parents to attempt a genuine resolution of their dispute through the process of mediation. The Family Law Rules 2004 (the ‘Rules’) outline this requirement of the pre-action procedures under Schedule 1.
During this process, the Family Court of Australia requires both parties to:
- exchange a legal document outlining what parenting orders are sought (a notice of intention to claim);
- explore options for settlement by correspondence; and
- comply with the full and frank duty of disclosure.
The court expects both parties to set out their request plainly, and asks that all information relevant to the case is provided. This duty of disclosure begins at the pre-action stage and continues throughout the proceedings. If additional documentation is created or comes into your possession as the dispute continues, you are duty bound to produce it.
This duty is not one to be taken lightly. Failure to comply with this duty may result in:
- the information not being allowed in as evidence;
- the case being dismissed;
- an order of costs against the non-compliant party;
- fines or imprisonment.
The purpose of these pre-action procedures and the undertaking of disclosure is to try to encourage the parties to resolve the dispute quickly and without the stress of having to go to court. It is still useful to engage in this procedure, even if a resolution is not reached. The early exchange of documents helps parties and their lawyers identify what orders can be sought on the evidence. By only dealing with the real issues of the matter, parties save on time and cost.
There are of course exemptions to participate in pre-action procedures such as instances:
(a) involving urgency;
(b) involving allegations of child abuse or risk of child abuse;
(c) involving allegations of family violence or risk of family violence;
(d) in which there is a genuinely intractable dispute; and
(e) in which a person would be unduly prejudiced or adversely affected if another person to the dispute is given notice of an intention to start a case.
This list is by no means exhaustive, the law also provides that should you have another “good reason”, you may be excused from this pre-action process. What constitutes a “good reason” is up to the discretion of the court.
KPL Lawyers are experienced in family law dispute resolution, we can help you reach an agreement with your former spouse without going to court. Our family law experts are on your side, contact us for more information on how to protect your children.
Making An Application And Going To Court
After reasonable attempts at resolution have failed in the pre-action stage, parties may file an application in the family court for parenting orders relating to ‘custody’, care time, and parental responsibility.
After submitting a notice of intention to claim, and after serving all relevant evidence, both parents and their legal representatives will have to attend a trial (otherwise known as a hearing). At the hearing, the judicial officer of the court will listen to and contemplate all available and relevant evidence. Witness examinations and cross-examinations may form part of the evidence presented to the court. Evidence forms a vital part of the application and will be the basis upon which the rulings will be made.
What Evidence Is Relevant For An Application For Parenting Orders?
The foremost concern that influences the court’s decision when it comes to ruling on parenting orders, is whether the child is exposed to violence or danger. The Act provides for this under Section 61DA(2) which stipulates:
The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
Even indirect exposure to violence will hurt a parent’s prospects for responsibility or care time.
For the courts to conclude that it is best for the child for one parent to obtain more responsibility or care time, it may contemplate the following evidence:
- Police reports;
- Court-ordered Apprehended Violence Orders (AVO);
- Affidavits (legal statement);
- Witness statements;
- Medical records;
- Material that demonstrates that one parent has a history of violent or dangerous behaviour that could endanger the child or impact their well-being;
- Material that demonstrates a total breakdown in communication between the parents or the children; or
- Material that demonstrates that shared custody would be more harmful to the child than an order for sole custody.
The mental and medical stability of a parent is important when it comes to the care of children, therefore the medical and psychological condition of the parents is another consideration observed by the courts.
Ultimately the court will need to balance the best interest of having regular and meaningful contact with one parent, against the potential harm caused to the child by being exposed to them.
It is important to note that seeking parenting orders from the court to restrict visitation access for one parent may not necessarily remove their parental responsibility when it comes to making important life decisions for that child.
This is just a snapshot of the complicated system that governs child and parent arrangements during separation or divorce. For the avoidance of doubt, it is worth emphasising the following points made in this article:
- ‘Equal shared parental responsibility’ deals with decision-making responsibilities and does not necessarily relate to care time or physical time spent with your children.
- Similarly, orders for ‘sole parenting responsibility’ may not include all responsibilities relating to raising your children. It may be divided in a multitude of ways e.g. full responsibility relating to education only.
- Even if full custody is granted to one parent in respect of physical time spent together, the court may still allow the other parent to have supervised visitation under certain scenarios. This again, must follow the doctrine of the best interest of the child.
Where To Now?
Your children and your rights as a parent are vital to protect. You should seek appropriate legal advice to make informed decisions on the best strategy going forward. KPL Lawyers have decades of experience in family law litigation. Our family law experts can help you navigate the intricacies of family law and protect your rights as a parent. We care about getting you the best result in your child arrangement dispute. Give us a call to see how we can help.