Discussions about “child custody”
While the Family Law Act makes no mention of ‘child custody’, ‘shared custody’ or ‘sole custody’, as a result of the continued use of these terms in television shows, movies and the media, we at Damien Greer Lawyers frequently receive questions from parents about how the ‘custody’ of their child will be decided or how they might go about getting ‘sole custody’ of their children or preventing their ex-partner from doing so.
The ‘best interests’ or welfare of the children is the paramount consideration that the Court looks at in determining which parent a child should primarily live with or spend time with post-separation or whether an order for a child to spend equal time between each parent is appropriate in the circumstances.
While there is a (rebuttable) presumption that it is in the best interests of children for both parents to have equal shared parental responsibility with respect to making decisions for the children about matters such as education, religion and health, there are no presumptions about which parent a child should live with post-separation or how their time should be allocated between parents.
The Court’s main concern in determining how much time a child should spend with each parent is determined by what is in the ‘best interests’ of the children. This is done by:
- Giving consideration to the two ‘Primary Considerations’, namely:
- Whether the children will benefit from having a meaningful relationship with both parents; and
- The need to protect the children from physical or psychological harm, from being exposed to abuse, neglect or family violence.
In applying the two primary considerations, greater weight is given to the need to protect the children from harm, abuse, neglect and/or family violence.
- Giving consideration to the 14 ‘Additional Considerations’, such as:
- the views expressed by the child (and the appropriate weight to be given to their views based on factors such as their maturity and level of understanding);
- the nature of the relationship of the child with each parent;
- the likely effect of any changes to the child’s circumstances (including the likely effect on the child of being separated from either parent);
- the practical difficulty and expense of a child spending time with each parent; and
- any family violence or family violence orders in place.
To summarise, there are no hard and fast rules about how much time a child should spend with each parent and no presumptions about who should have ‘custody’ of a child post-separation. Rather, each case is determined in accordance with what, in the circumstances, is considered to be in the best interests of the child.
