Separating from your partner can be a difficult and stressful experience, and this is magnified when children are involved. On top of the emotional challenges, divorce and child custody disputes are difficult legal processes to navigate.
Apart from trying to make sense of the legalities of the situation, deciding on child custody agreements can often cause arguments between you and your ex-partner. While mediation and dispute resolution are preferrable over lengthy and costly court proceedings, the matter may be escalated to court if you and your ex-partner cannot come to an agreement.
Child custody for fathers can be particularly difficult as many fathers feel that they lack equal parental rights. This can be stressful when seeking child custody.
At Le Brun & Associates, our experienced Family Lawyers can help you to achieve a better outcome and navigate your child custody dispute.
How does child custody work in Victoria?
Child custody in Victoria is covered by federal law under the Family Law Act (1975). This law is the primary statue which governs family law issues, including child custody disputes.
The law states that the most important factor in all parenting decisions is the child’s best interests. Therefore, the awarding of child custody and parenting time are based on what is best for the child, not the parents.
In Australia, the law recognises the importance of a child’s meaningful relationship with both parents, which is good for fathers seeking child custody. Co-parenting is encouraged with both parents making decisions for the child.
How child custody is awarded is decided on a case-by-case basis, but Australia has equal parenting rights and mothers are not given preferential treatment.
What are the different parenting arrangement types?
There are different parenting arrangement types when it comes to child custody agreements. Parenting arrangements can be agreed on by both parents through mediation and dispute resolution. This can be a written plan, an oral agreement, or a consent order which is an agreement that is put into a formal court order.
Shared parental responsibility refers to when both parents have equal responsibility for the child. This means they have equal say in major decisions for the child’s upbringing, such as education, religion, and health.
Sole parental responsibility is when one parent has the full responsibility to make decisions regarding the child’s upbringing.
If a resolution is not reached by mediation and the matter is escalated to court, the court will create a parenting order, which specifies arrangements for the child, such as who they will live with and when they will spend time with the other parent.
What does the court consider when making a parenting order?
If your child custody dispute is not resolved through mediation or dispute resolution, the matter will be passed to court to decide on the child custody agreement. There are multiple factors the court considers when making a parenting order, which must be followed by both parents.
Deciding the child’s best interests
The most important consideration for the court is the child’s best interests. This includes protecting the child from any physical and psychological harm, such as preventing them from seeing any family violence, being neglected, or being hurt physically or psychologically.
It also includes the benefit of the child having a meaningful relationship with both parents. However, if these two factors are in conflict, the protection the child is paramount.
The court will also consider what the child thinks and wants. This depends on how much they understand and how mature they are.
The court will review the child’s relationship with each parent. This includes how much time each parent has spent with the children, how much each parent has been involved with major decisions about the children, and whether each parent has supported the children financially or failed to do so.
Each parent’s attitude to their parental responsibilities and their ability to provide for the children’s physical, emotional, and intellectual needs will also be considered by the court.
Equal shared parental responsibility
Equal shared parental responsibility refers to both parents sharing major long-term decision making when it comes to their children. This does not equate to equal parenting time or shared care.
If the court finds that both parents share equal parental responsibility, the parents must come to agreement on major decisions affect the children, such as medical matters, religious matters, cultural matters, education, and living arrangement.
Parenting time
If the parents have equal shared parental responsibility, the court must then decide if it is practical and in the best interest of the child for them to spend equal time or ‘substantial and significant time’ with each parent.
Substantial and significant time refers to each parent spending weekdays, weekends, and holidays with the child, and each parent having a meaningful involvement with the child’s daily routine. This includes spending time with the child on significant events such as birthdays.
Practical considerations
The court will consider how practical an arrangement is by reviewing how equal or substantial and significant time will affect the child, how far apart the parents live, and each parent’s ability to co-parent and communicate with each other, resolve difficulties, and ensure the arrangement works to the best interests of the child.
How can a father win child custody?
In Australia, fathers have the same legal rights as mothers in child custody disputes. Under the Family Law Act (1975), a father can win custody if it is in the child’s best interest. There are steps you can take to improve your changes of obtaining child custody.
Demonstrate a willingness to co-parent
Because the law encourages the child to have a meaningful relationship with each parent, you can show your commitment to the child’s best interests by demonstrating a willingness to co-parent. Participating in the child’s life and showing you can collaborate with the other parent will be looked at favourably by the court.
Consider mediation
By showing a willingness to mediate, you can demonstrate their dedication to coming to a solution that is in the child’s best interests.
Engage a family lawyer
Engaging a family lawyer can help you to navigate the legal process and ensure you know your rights and responsibilities. If the child custody dispute is escalated to court, your family attorney can represent you in court.
Document participation in the child’s life
Documenting your participation in your child’s life can help you to demonstrate your commitment to your child’s well-being. This can include records of your participation in your child’s medical, school, or other activities.
Prepare for court
If an arrangement cannot be made through mediation, you should prepare for court by collating evidence which supports it is in the child’s best interest for you to have child custody rights. This includes your ability to provide for your child and evidence of involvement in your child’s life.
Engage a Family Law expert to help you gain child custody
At Le Brun and Associates, our family law experts in Melbourne are experienced in matters surrounding divorce and child custody. We can help guide you through these complicated legal proceedings. Contact us today for a free 30-minute consultation.