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. In Australia, this is known as seeking sole parental responsibility. The laws surrounding sole parental responsibility changed significantly as of 6 May 2024. This page explains what parental responsibility is and outlines the changes.

What is parental responsibility?

‘Parental responsibility’ refers to all the duties, powers, responsibilities and authority that parents have in relation to children. This includes making long-term decisions about a child such as where the child is to be educated, what religion they are to follow, their name, any major medical procedures they receive and when they obtain a passport.

When no court orders have been made, both parents will have parental responsibility for their child or children. When a parenting matter goes to court, the court may make an order that gives parental responsibility to one person or to more than one person. While the persons with parental responsibility are usually parents, this is not always the case. In some situations, parental responsibility may be given to a grandparent or an aunt if this is in the child‘s best interests.

What is changing?

Prior to 6 May 2024, the Family Law Act 1975 contained a presumption that the parents of a child should have equal shared parental responsibility for the child. This meant that the court’s starting point when considering what parenting orders to make was always that there should be equal shared parental responsibility.

This was the case regardless of the circumstances and background of the family.

The only exception to the presumption of equal shared responsibility was where there were reasonable grounds to believe that a parent has engaged in abuse or the child or of another child or in family violence. In these situations, the presumption did not apply.

The presumption of equal shared parental responsibility resulted in a system that failed to prioritise the safety of children and orders that placed children at risk. As of 6 May 2024, the presumption no longer applies. 

Best interests of children

As of 6 May 2024, courts are required to determine what order in relation to parental responsibility is in the best interests of the child. The factors that a court must take into account when assessing what is in a child’s best interests are set out in section 60CC of the Family Law Act 1975.

Equal Shared Parental Responsibility

Although there will no longer be a presumption of equal shared parental responsibility, courts may still make an order for shared responsibility in terms of major long terms issues in relation to children where this in the child’s best interests.

When the court makes an order for two people to share parental responsibility, the two parties must consult with each other on these major long term issues and decisions about the child and make a genuine effort to come to a joint decision. 

Sole Parental Responsibility by consent

In some cases, parents may agree that one parent will have sole parental responsibility for a child.

When this happens, the parents can put the agreement into writing. This can be done informally in the form of a parenting plan, or formally in the form of a consent order that is submitted to the court and is legally binding.

A parenting order in relation to a child does not take away or diminish parental responsibility for the child except where expressly provided for in orders. While parenting orders can confer parental responsibility for major long term issues in relation to the child, there is no need for parents to consult on issues that are not major long term issues such as the day-to-day care of the child. 

It is important to note that this agreement does not terminate the rights of the parent who is not sharing parental responsibility in relation to the child or children’s major long term issues. 

Seeking sole parental responsibility in court

When one parent seeks full custody of a child (or sole parental responsibility in relation to major long-term issues for the child), and the other parent does not agree, the court will make orders based on what it assesses to be in the best interests of the child.

Prior to applying for court orders, 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, an application may be made to the Federal Circuit and Family Court of Australia.

The applicant will need to file a detailed affidavit setting out all the evidence in support of the orders they are seeking in their application, along with a number of other documents. This will then be served on the respondent, who will have the opportunity to file a response accompanied by an affidavit setting out the evidence in support of the orders that the respondent is seeking.

The court will have the best interests of the children as its paramount concern when deciding what orders to make.