First a bit of encouraging news: When we think of divorce proceedings and custody arrangements, it can be easy to fall prey to horror scenarios (we’ve all seen Kramer vs. Kramer after all).
The thought of long, ugly custody battles, unnecessary suffering for the children… as if ending a relationship wasn’t hard enough.
However, very few divorces and separations actually get that nasty. In fact, only 3% of Australian parents go through the court system to reach a childcare agreement post-separation. One in five sets of separating parents prefer to go with a family dispute resolution service or use their solicitors to finalise their custody arrangements; however, three out of five custody arrangements are simply agreed upon by the parents and then finalised during the separation or divorce settlement.
Mothers’ Rights vs. Fathers’ Rights – No longer a thing
The idea of one parent’s rights overruling the other’s is no longer really applicable. Since the Australian Family Law Act 1975 the most important concern when it comes to custody settlements is the best interests of the child/ren. As a rule, the Court believes that the child/ren have a right to a meaningful relationship and contact with both parents post separation. If a custody dispute ends up before the courts, the court will make decisions not based on the parents’ gender but on their ability to care for their child/ren.
There are a number of factors taken into consideration during this process:
- Any history of domestic violence of either parent
- How much a parent works; i.e. how much time they have to care for their children
- Which parent’s accommodation is best suited to housing the children
- Any history of alcohol and/or substance abuse of either parent
It is increasingly rare that children themselves are required to give evidence or statements in court, as the aim is to minimise any trauma associated with the separation/divorce process. However, once children are over the age of 13, they can demand to have their say in the proceedings and be part of the decision making process.
Parental Responsibility vs. Custody
Since 2006 Australian courts operate under the assumption of shared parental responsibility (Family Law Act (Shared Parental Responsibility) 2006); which means that each parent is responsible for the child’s welfare in equal parts.
However, this does not mean the child/ren will automatically be required to spend equal amounts of time with each parent. The physical custody agreement will still be worked out depending on each family’s individual circumstances.
Shared parental responsibility means both parents
- Are responsible to make long-term decisions regarding the child/ren (i.e. which school they attend, their place of residence, medical treatment, religious education)
- Are required to support the child/ren financially within their individual means
- Are being held responsible for the child/ren’s physical and emotional welfare
Equal parental responsibility even applies in cases when one parent has very little physical contact with the child/ren; i.e. if they live in a different state or country. Big decisions regarding the children have to be made by both parents, unless the courts have awarded sole parental responsibility to one party.
Rights and Responsibilities
According to Australian Family Law, children have two main rights when it comes to separations and divorce. The first is the right to benefit from a meaningful relationship with both parents, and the second is the right to be protected from physical, emotional, mental and sexual harm.
The tenets override all other consideration in divorce proceedings and custody disputes.
Parents’ rights are very similar. Each parent has the right to a meaningful relationship with their child/ren, in a capacity and context that works for the family. However, each parent also has the right to be protected from harm; which means that in cases involving domestic abuse, domestic violence or substance abuse, the court can withdraw one parent’s parental responsibility and prevent them from contact with their child/ren and former partner if they see fit.
Child Support Payments
In most separation/divorce cases, the shared parental responsibility is maintained; which means both parents are responsible for the child/ren’s welfare. This can take many shapes, as no two family’s are the same, however, it most often means that the parent with less physical custody is required to pay some form of child support to the parent caring for the child/ren the majority of the time. Child support payments are designed to help pay for essentials required by the child/ren and relieve financial stress on the primary carer, who is likely to be at a disadvantage when it comes to earning potential – basically, looking after the kids takes time and pays not-at-all, so whoever works more and makes more money has to chip in. The amounts of child support can vary dramatically, depending on the income of each parent.
If shared parental responsibility remains post separation, neither parent is allowed to relocate with the child without consent from their co-parent. This doesn’t mean you can’t move house within your general area, of course, but it does mean that interstate or overseas moves have to be discussed and agreed upon with your former partner. Each parent is entitled to veto a long-distance relocation if it would mean their contact with the child is severely diminished; however, very few disputes about relocation are brought before the courts.
If a parent relocates the child without their co-parent’s consent, the parent left behind can apply for Recovery Orders and demand the child be returned to accommodation closer to their own or be transferred into their custody. Again, this sounds dramatic and scary, but it is only necessary in extreme cases and very few families have to endure this sort of trauma.