Top Questions Parents Ask About “Child Custody” in NSW
Understanding “Child Custody” in NSW
Child custody matters in New South Wales can be complex and emotionally challenging. The Family Law Act 1975 (Cth) (“the Act”) governs these matters, and emphasises the child’s best interests as the primary consideration in all decisions.
The term “child custody” is no longer used in Australia. In the past, the terms “custody” and “access” had been used to describe the care arrangements for a child.
Nowadays, the Act uses the terms “lives with” and “spend time with”.
For example, in the past it may have been said one parent had “custody” of the child and the other parent had rights of “access” to the child. These days, court orders will provide that that a child may live with one parent and, spend time with the other parent.
This article addresses the most common questions parents have regarding parenting matters in NSW.
Does Shared Parental Responsibility Mean Equal Time?
In short – no, it does not.
Parental responsibility simply deals with who has the responsibility of making major long-term decisions that affect the child, including education, medical issues and religion. If this is equally shared between the parents, it means that they both have a say in making these types of decisions.
In the absence of orders stipulating otherwise, section 61C of the Act provides that both parents have parental responsibility, meaning either parent can make these types of decisions with or without consulting the other parent.
This is different from what time the children spend with you. It is possible to share parental responsibility for the children, without having orders that the children spend equal time with each of their parents.
How Can I Obtain “Sole Custody”?
In Australia, “sole custody” occurs when the Court makes orders that the children live with one parent (or another person, such as a grandparent) and that they spend no time with the other parent. Alternatively, orders can be made that they spend only very limited time with the other parent, such as a few hours per month or per year or even for time to occur on a supervised basis.
The Court only makes those orders in circumstances where it is in the child’s best interests to do so, for example, where they would be placed at an unacceptable risk of harm if they spend time with the other parent.
One of the factors the Court must consider when determining such an application is the benefit of the child, if any, of being able to have a relationship both of their parents.
However, this is weighed against considerations of risk of harm.
The Court must consider what arrangements would promote the safety of the child or the people caring for the child. The Court may be more likely to grant “sole custody” to one parent where there are significant risks of harm such as significant family violence, neglect, substance abuse or a lack of parenting capacity. However, usually the parties will have opportunities to address these issues before Final Orders are made.
In summary, the Court prioritises the child’s safety and well-being, and any decision to grant “sole custody” must align with these priorities.
What If the Other Parent Has Been Absent?
If one parent has been absent from spending time with or caring for the child, they do not automatically miss out on attempting to re-establish their relationship with the child.
In many cases, it is appropriate for a gradual re-introduction of that parent to the child, potentially through supervised visits, to allow the child to adjust and become reacquainted with that parent.
Of course, it must be in the child’s best interests, and not expose them to risks of harm, for such contact to occur. If these risks can be appropriately monitored and managed, the Court will likely support the child in being able to have a meaningful relationship with both parents.
How Are Parenting Arrangements Formalised?
Parenting arrangements can be formalised in two ways: a Parenting Plan, or Parenting Orders.
A Parenting Plan is a less formal method of formalising your agreement, in that it is not legally-binding and does not involve the Court. This means that, should one party stop complying with the Parenting Plan or withdraw their consent to the Parenting Plan, there is no immediate legal course of action that can be taken.
Notwithstanding this, if there is a Parenting Plan, and your matter ends up being litigated in Court, the Court must have regard to the Parenting Plan if doing so would be in the child’s best interests.[1]
A Parenting Plan may be more beneficial in circumstances where you have young children, and the arrangements may need to change as the children become older. A Parenting Plan can be easily varied by a later Parenting Plan.
In contrast, Parenting Orders are orders made by the Court, and as such are legally binding and enforceable. If you have an agreement, these orders can be made through an Application for Consent Orders.
If you want to make changes to Parenting Orders, you must make a further Application to the Court to vary the orders.
What Role Does Family Violence Play?
Family violence is a significant issue that the Court must consider carefully. The Court is required to make Orders that are in the child’s best interests, and this includes protecting them from risks of harm.
Any allegations of family violence, which suggest there is a significant risk of harm, may impact on the ability of the alleged offending parent to spend time with their child, and may require that parent to spend supervised time, or in some cases no time, with the child.
If one parent poses a significant risk of harm to the child or to the other parent, Orders may be made restraining that party from doing certain things.
If the Court considers that there is a significant risk of harm to the child or other parent, it will usually be up to the offending parent to provide evidence that they have addressed and mitigated these risks.
Such actions may include completing certain Parenting Courses, obtaining a Hair Follicle Test, or demonstrating their ability to care for the child without exposing them to family violence through supervised contact.
Can Care Arrangements Be Changed?
If your parenting arrangements are made as a result of an agreement, you can always change the agreement by consent between both parents.
If your parenting arrangements are made as a result of a Court Order, the Court requires a significant change in circumstances for this to occur. The Court must also be satisfied that in all of the circumstances, it is in the child’s best interests for Final Orders to be reconsidered.[2]
A simple passing of time will not be sufficient to meet this threshold. Instead, examples of a significant change in circumstances may include a party relocating with the children to a far away location, a change in living arrangements, health issues or further family violence occurring.
Further, the threshold may be met if the Final Orders no longer reflect the actual care arrangements for the child.
Ultimately, a change in circumstances may be “significant” if it impacts on the parties’ ability to comply with the Final Orders in a material way.
Conclusion
Understanding the law about child custody is crucial for parents considering separation or divorce.
The paramount consideration is always the child’s best interest, and the Court will always try to ensure that the child’s best interests are being met in a safe and protective environment.
Seeking legal advice can help parents make informed decisions and create arrangements that support their child’s well-being.
The experienced family and child custody lawyers at Conditsis Lawyers Newcastle can help you at every stage of your parenting matter to reach an outcome that is focused on your child’s best interest.
We offer a free no-obligation first consultation. Call our Newcastle office on 02 4058 5844 or email us to arrange a private and confidential meeting with a family lawyer who specialises in child custody matters.
[1] Family Law Act 1975 (Cth), s 65DAB.
[2] Ibid, s 65DAAA(1).
