Many parents with child dispute matter Google searches on the internet on “How to win child custody”.  All parents want the best for their children and want to succeed in their child custody dispute.  However, “winning” in child custody cases is about reaching an agreement or obtaining court orders where the child’s best interest wins.

First, let us clarify what “child custody” is all about. It is important to know that the common term used is ‘child custody’ but in legal terms, the word “custody” is no longer used.  Parenting agreements and court orders talk about with whom the child “lives with” and “spends time with”.

Child custody relates primarily to two issues: –

• Parental Responsibility
  Whether both parents or only one parent should make decisions regarding major issues affecting their child such as schooling, health and religious upbringing; and
• Live with and spend time
  Whether the child is to live with one, or both parents on an alternate basis and how much time the child is to spend with each parent.

The “best interest” of the child is paramount

Child custody laws in Australia are governed by the Family Law Act 1975, which is a federal law that applies throughout Australia. It states in clear and unambiguous terms that, “in deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.” This standard is often called the ‘paramountcy principle’.

In a previous case, the Family Court has said that “the paramountcy principle” means that the child’s interest is the focus and not the parents’ interest, preference or wishes. The wants, needs and well-being of the children override those of the parents.

How the Family Court determines what is in the best interest of the child

Under Section 60CC(2) of the Family Law Act, in determining what is the child’s best interest, the Family Court must consider the following primary and additional considerations.

The primary or most important considerations are: –

• the benefit of the child having a meaningful relationship with both parents;
• the need to protect the child from: –
• – being subjected to physical and psychological harm or
• – being exposed to abuse, neglect or family violence.

The need to protect a child from physical and psychological harm and being exposed to abuse and family violence is given greater weight by the Family Court compared to all other considerations.

The additional or secondary considerations that the Family Court must consider comprise 13 different considerations, which are set out in Section 60CC(3) of the Family Law Act.  These considerations include the following:

• the child’s views.
• the nature of the relationship the child has with each of their parents and other persons, including grandparents and siblings.
• the extent to which each parent has taken or failed to take the opportunity to participate in major long-term issues affecting the children, including how much time each parent spends or communicates with the child.
• the likely effect of any change to where the child has been living or staying including the separation from either parent or any other child or any other person they are living with.
• the practical difficulty and expense of the child seeing each parent, and whether that difficulty will affect their right to have a relationship with each parent.
• any family violence involving the child or their family member.

The criteria above make good common sense. However, the application of these laws to real life situations can make child custody disputes highly complex and contentious. Some of these situations that will impact on child custody outcomes in the Family Court include the following: –

• Family violence perpetrated by a parent and its nature and extent and whether the child has been exposed to such violence and the impact on the child’s safety and well-being.
• Alcohol and drug abuse by a parent and whether the child’s safety and well-being are at risk.
• Relocation by a parent to another city or town within the same state, or to another state or country and its impact on each parent’s ability to spend time with the child as a result of the relocation.
• Involvement by a parent in illegal activity or with third parties who may be engaged in such activities which puts the child’s safety at risk.
• A parent’s criminal and traffic convictions.
• Mental illness of a parent and whether this will impact on a parent’s capacity to care for the child and whether the child may experience neglect, abuse or violence.
• Disparagement of the other parent in the presence of the child or emotional manipulation or “brainwashing” of the child with the aim of damaging the child’s relationship with the other parent and turning the child’s emotions against the other parent.
• Mental health issues suffered by the child, the cause of such issues and whether a parent has contributed to this or whether a parent has failed to manage these issues.
• Breach of existing court orders impacting on a parent’s time with the child.

If any of the above situations arise, they will need to be examined closely to determine what arrangements would in the child’s best interest.

Equal shared parental responsibility

When making parenting orders, the court is required under Section 61DA of the Family Court Act to presume it is in the child’s best interests for the parents to have “equal shared parental responsibility”, unless there has been child abuse or family violence by a parent or a person who lives with the parent.

Equal shared parental responsibility means both parents are expected to make joint decisions regarding major long-term issues impacting on their child such as education, health, and religion.  Hence, before making any decisions about the child, each parent must consult the other parent.

The presumption of equal shared parental responsibility can be rebutted if there are reasonable grounds to believe that one parent has abused or neglected the child or there has been evidence of family violence. In this case, one of the parents may be granted sole parental responsibility.

If the Family Court finds that it is not in the child’s best interest to make an order for both parents to have shared parental responsibility, the court will make an order for one parent to have parental responsibility.  This means that this parent can make major decisions affecting the child without consulting the other parent.

Parenting time

Many parents assume that if they have shared parental responsibility, then they should also spend time with the child on a 50-50 basis. However, this is not the case.  The amount of time that the parent spends with each child is an entirely different matter.  Even if both parents agree to have shared parental responsibility or if the Family Court makes such an order, there is no presumption that both parents are to have equal parenting time with the child.

If the court decides you have equal shared parental responsibility, the court must also consider under

Section 65DAA(3) of the Family Law Act whether it is in the child’s best interests and reasonably practical for the child to spend equal time, or substantial and significant time with each parent.

“Substantial and significant time” includes children spending weekdays, weekends and holidays with each parent and having meaningful involvement with the child’s daily routine. It includes spending time on occasions and events that are of particular significance to the child and parents such as birthdays and occasions significant to the parties’ cultural background as well as important school events.  “Substantial and significant time” could result in the child spending 5 or 6 days out of a two-week cycle with one parent during the school term and equal time during the school holidays.

Contact us

It is always best to seek the advice of a family lawyer so you understand your rights and obligations.

The Family Law team at Robertson Hayles Lawyers in Perth have years of experience in dealing with complex and highly contentious child custody disputes.  For all enquiries, please get in touch with Robertson Hayles Lawyers at (08) 9325 1700 or by email at enquiries@robertsonhayles.com or via our contact form, and we will be happy to assist you.