TGB's family law team on how the Family Court interprets child custody laws, and whether 'full custody' is possible.
TGB’s family law team on how the Family Court interprets child custody laws, and whether ‘full custody’ is possible.
After the breakdown of a relationship involving children, both parents naturally want to ensure that their children are well looked after in the future. For many people this gives rise to the belief that they alone should look after the child or children to the exclusion of the other parent.
Of course, there are usually multiple dynamics involved in relationship breakdowns and parents will sometimes be driven by emotion to seek a situation where they feel they have won the “fight”.
The law which covers situations of a child’s care after a relationship breakdown in Australia, the Family Law Act 1975, is surprisingly simple. The court is required to make decisions (and parents should base their decisions) according to a child’s best interests. This is the paramount consideration. Simple, right?
Well, yes, sometimes it is quite simple and clear to see that the child will benefit from having strong and ongoing relationships with both parents, and the parents recognise that and come to sensible arrangements for the future care of their children.
Unfortunately, it is not always the case. In some matters the child is at risk of harm in the care of one of their parents.
The Act contains two primary considerations which a court must have regard to in making a decision in the child’s best interests. They are that, all things being equal, the child will benefit from having an ongoing relationship with both of his or her parents and that the child should be protected from harm.
Recent changes in the law now mean that when those two primary considerations come into conflict, the court must give more weight to protecting the child from harm.
So what does that mean? It means that, unless the child or children are at risk of harm in the other parent’s care, you can expect a court to order that the children should spend time with both parents and you probably would not be able to get an order for “full custody”.
If, however, the children are at risk of harm in the other parent’s care then you should contact a lawyer and obtain advice specific to your circumstances about making an Application to Court for the child or children to live with just you.
TGB is South Australia’s largest family law firm, with new offices in Western Australia and Northern Territory.
For advice about your family or divorce issue, contact your nearest TGB office.