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Applying for Full Custody of a Child

During separation or divorce proceedings, a parent will often enquire about applying for full custody of a child (known legally as seeking sole parental responsibility). To understand the implications of applying for full custody of a child, it is important to first understand that there is a legal presumption that parents will share equal parental responsibility.

What is Equal Shared Parental Responsibility?

The law on parenting in Australia starts from the assumption that each parent has equal parental responsibility for their children. This means that each parent will exercise all the related “duties, powers, responsibilities and authority” (Family Law Act 1975 s 61B), including being involved in important decisions about the medical, educational and religious upbringing of the child. Parental responsibility allows both parents to discipline a child (within reason), apply for a visa and passport, give their consent to the adoption of a child, and commence legal proceedings on behalf of the child.

This presumption applies until the child is 18 years of age. It applies regardless of whether the parents were ever in a relationship, were married, de facto, or otherwise, and it includes legally adopted children. However, there is no presumption of parental responsibility for stepchildren unless they are legally adopted or there is a relevant parenting order in place.

Even when parental responsibility is shared, this does not mean that a child in a shared parenting arrangement will spend equal amounts of time with both parents. For instance, parents may agree that it is in the best interests of the child to spend the school term with one parent and school holidays with the other.

Sole Custody of Children

The law assumes that it is in the best interests of every child to have regular and meaningful contact with both parents. However, sometimes parents will agree between them that one parent will have sole parental responsibility for a child. In this case, the parents can put this agreement into writing informally in a parenting plan, or formally in a consent order that is submitted to the court and is legally binding. It is important to note that this does not terminate the rights of the parent who is not sharing parental responsibility and that this parent can later apply for a variation of the consent order.

Can One Parent seek Full Custody if the Other Parent Objects?

It is more complex when one parent seeks full custody of a child, and the other parent does not agree. In this circumstance, the parents must try and reach an agreement with the help of a mediator at a Family Dispute Resolution Conference. If an agreement cannot be reached in the conference, the Federal Circuit and Family Court of Australia will decide how the child should be parented. In many circumstances, the court may consider the wishes of the child themselves.

The court will start from the presumption of shared equal parental responsibility. The parent seeking sole custody will need to present evidence that rebuts this presumption and demonstrates that it is not in the child’s best interest to have regular contact with the other parent. The Federal Circuit and Family Court of Australia can make an order to give one parent sole parental responsibility for the child, and it may issue a no-contact order.

Sole parental responsibility is not the same as termination of parental rights: although one parent will not exercise rights and responsibilities in relation to the child, they remain the parent of the child. Alternatively, the Federal Circuit and Family Court of Australia may make an order giving one parent sole parental responsibility in relation to some areas of the child’s upbringing: for instance, the court could allow one parent to make all decisions in relation to religious upbringing.

What Evidence is Relevant to an Order for Sole Parental Responsibility?

In considering whether to grant full custody to one parent, the court will look at any evidence, such as police reports, court orders and affidavits, that show that one parent has a history of behaviour that could endanger the emotional or physical well-being of the child. Consideration may also be given to the medical and psychological stability of both parents. The court will consider whether the impact of not seeing a parent is less than the potential harm of having contact with that parent. The law specifically provides that when making parenting orders, the court must consider the risk of exposing a child to violence (Family Law Act s 61DA).

It is important to know that even if a parent does pose a danger to a child, the court may still order supervised contact, on the basis that it is in the best interests of a child to have some contact with both parents. In addition, the court may order that contact with grandparents or other extended family is in the child’s best interests, even if they order no contact with the parent themselves.

Armstrong Legal’s family law experts can assist you in applying for full custody of a child. Please call Armstrong Legal on 1300 038 223 or send us an email to make an appointment with one of our friendly, professional family lawyers.

Dr Nicola Bowes

This article was written by Dr Nicola Bowes

Dr Nicola Bowes holds a Bachelor of Arts with first class honours from the University of Tasmania, a Bachelor of Laws with first class honours from the Queensland University of Technology, and a PhD from The University of Queensland. After a decade working in higher education, Nicola joined Armstrong Legal in 2020.

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