Divorce has profound impacts on children. Managing child custody laws well saves your children much emotional difficulty. This requires sound legal knowledge. What does the law say? And how does it affect you?
Key takeaways
Child custody and the Family Law Act
Child custody arrangements, child custody laws, and family court processes come under the Australian Family Law Act. It centres on the best interests of the child. Amendments changed how the Family Court approaches custody. Expert reviews found that the rules around how the Court settles custody cases could be clearer.
Amendments to custody regulations
Parental responsibility, child support, and child custody arrangements relate to how parents make major decisions. You’ll notice it has nothing to do with where the child lives. Think of it like physical custody vs. legal custody. The Court is now considering parental responsibility in a new way.
The Court wanted parents to share responsibility for the child’s life, including child support. Sharing responsibilities never meant equal time. The law distinguishes between making decisions and caring for children. However, court decisions were blurring this distinction, raising concerns that this could expose children to violence.
New considerations
The parental responsibility of one or both parents should serve the child’s best interests and support the child’s relationship with each parent. The law included a long checklist of considerations to protect those interests and guide parents who wish to obtain child custody. However, this led to confusion and undesirable results. The framework used to determine a child’s best interests is now a shorter list of factors. These factors are the following:
What child’s living arrangements promote the safety of the child and any party caring for the child? This includes preventing exposure or subjection to family violence, child abuse, or neglect. To maintain the child’s safety, the Court will account for the following:
Domestic violence orders applied to the child or member of the child’s family.
Any history of family violence involving the child or a person with caring duties for the child.
The views of the child. The child should display an appropriate maturity level.
The developmental, psychological, emotional, and cultural needs of the child.
Each parent’s capacity to provide for the needs in point 3.
How beneficial it is for the child to maintain a relationship with both parents.
Any other factor the Court considers to be relevant.
Aboriginal or Torres Strait Islander considerations
There are specific provisions for children of Aboriginal or Torres Strait Islander descent. The child has a right to enjoy their culture, with the support, opportunity, and encouragement to do so. Additionally, provisions ensure that the child is supported financially, including consistent child support payments to meet their needs. This should be with the support, opportunity, and encouragement to do the following:
Connect with family members and their community and culture.
Explore their culture fully. This should be consistent with their age, developmental level, and their views.
Develop a positive appreciation of their culture.
Custody arrangements
You can make parenting arrangements by consent or through court intervention. We recommend consent orders for most parents, as a child’s welfare benefits from parental cooperation. This approach not only supports the child’s relationship with both parents but also ensures the child is supported child financially and can access opportunities that contribute to the child’s education and overall well-being.
Most parents agree to a parenting plan, which promotes the child’s welfare by encouraging cooperation and minimizing conflict. Only about 3% turn to the Court, typically in situations where there may be a threat to the child’s safety or well-being. In such cases, the Court assesses factors like supporting the child financially to ensure their needs are met.
Consent orders should cover all aspects of a child’s life. This includes:
Who the child lives with and when.
The visitation rights of the other parent.
How change-overs will work.
Methods for resolving disputes.
Extra-curricular activities the child will partake in.
If parents can’t agree, the Court will make a parenting order. Parents undergo family dispute resolution first. If they can’t agree, they proceed to court.
Parenting orders can’t include child support. Parties take care of this through a separate process. This process involves a child support assessment from Services Australia.
Conclusion
When parents separate, they have tough choices. The most important are child custody decisions. Think about your kids’ needs. Use our insight into the Court’s approach to custody. This knowledge helps you manage custody issues in or out of court. However, you choose to organise custody, a child custody lawyer is recommended. Our team is on your side. Give us a call today.
