Separating from your partner will likely be a stressful and turbulent time no matter your situation, particularly when there are children involved. You may be under the impression that mothers are favoured over fathers in court when it comes to determining the living arrangements of children in Melbourne and the rest of Australia. You are not adopting such assumption – however this is not the case. Australia’s Family Law Act is gender neutral, and there are myriad considerations when it comes to the likelihood of a father gaining full custody.
What does having full custody of a child mean?
In Australia, the terms ‘sole custody’ or ‘full custody’ are technically no longer in use within family law. The accepted term is now ‘sole parental responsibility’. Nevertheless, the implications remain the same.
Sole parental responsibility orders grant one parent the authority to make decisions about a child’s life, either exclusively or partially, without needing to consult the other parent in the decision making. These decisions include the child’s living arrangements, care and welfare – along with other major responsibilities like education and health matters.
These orders do not automatically exclude the other parent from seeing or spending time with the child in question; however, the parent with sole responsibility can make decision involving the day to day care arrangements of a child and orders may by consent or by the court will stipulate the level of contact the child can have with the other parent. The decision can also be made by the parent with sole responsibility for the child to live with them exclusively.
It’s also worth keeping in mind that divorce and property settlement are treated separately to those of parenting and custody.
How often do fathers gain full custody of their child?
Studies show that children are statistically more likely to live with their mothers than their fathers following a separation or divorce. This, however, isn’t due to the preference of the courts, but to other peripheral circumstances, such as the child’s preference.
Here are some recent statistics when it comes to sole custody in Australia:
- Following Family Court decisions, 93% of the parents will share equal parental responsibilities.
- Around 3% of fathers will have no contact with their children.
- Parents will share equal parental responsibility in 40% of cases.
- In 45% of cases, the mother is given sole custody of the children.
- In 11% of cases, the father is given sole custody of the children.
- Courts don’t always intervene, with only 3% of custody cases go to court. 6% of parents use family dispute resolution programs or lawyers.
[Source: Australian Institute of Family Studies 1997]
In what circumstances would one parent gain full custody of their child?
Generally, one parent gaining full custody or parental responsibility is somewhat rare. It is possible if both parents can come to a mutually agreed upon arrangement. Ideally, this agreement will be formalised with a child custody lawyer to ensure both parties understand their obligations and to avoid disputes in the future. Conversely, if the other parent contests, you will need to make an application to the court.
From the court’s perspective, it’s the right of the child to have a meaningful relationship with both parents. Furthermore, under the Family Law Act 1975 there is a presumption that both parents will have an equal parental responsibility. For sole custody to be granted, this presumption needs to be proven to be at odds with the child’s best interests.
The presumption of equal parental responsibility is nullified if one parent has engaged in physical or psychological abuse of the child or family violence of any nature. The welfare of the child is always placed above any presumption of shared parental responsibility in Family Court.
If you are concerned that your child is exposed to a serious risk of harm in the care of the other parent or other people the child may encounter when in the care of the other parent, you should seek an order for sole custody, potentially with a no contact order.
How can I improve my chances of gaining full custody?
In most cases, the Family Court will rule that joint custody is the best arrangement for any child. This is because it is the child’s right to have a meaningful relationship with both parents.
With your child’s best interests in mind, the courts will consider factors such as the child’s preference, the nature of the relationship between the two parents, and the ability of each parent to meet the needs of the child.
As mentioned, if the other parent poses a threat to your child’s safety, then you are most likely to receive sole custody. If not, you may need to reconsider your goal to win full custody.
Engaging a family law expert can also improve your likelihood of gaining your desired outcome. If you need guidance in these matters, our dedicated team of family lawyers in Melbourne can help you.
At Le Brun & Associates, our family and divorce lawyers are focused on providing comprehensive, timely and relevant advice and support, to help you.