Key takeaways
Who has parental responsibility?
Parental responsibility refers to all the duties, responsibilities, authority, and power parents have regarding their children. Usually, each parent has responsibility for the child, irrespective of whether they are in a de facto relationship, married or not in a relationship at all. In this way, both parents can independently make decisions about the child.
When parents of a child under 18 years old separate, they both continue to share parental responsibility for the child.
In Australian family law, separated parents are encouraged to consult each other when making decisions on major long-term issues for their child, as long as this is safe. The child’s best interests are the most critical consideration when parents and the Courts make these decisions.
These major long-term issues include anything in the child’s care, welfare, and long-term development – their health, religious and cultural upbringing, education, and significant changes to their living arrangements.
The Court will no longer automatically order parents to share major long-term decision-making. Instead, the Court now looks at what is right for the child in that particular case’s circumstances. Thus, the Court may decide that it is in the child’s best interests to take parental responsibility away from one or both parents, or assign parental responsibility to a legal guardian.
How much time will a parent get with a child?
There are no specific rules or laws about arranging which parent a child will live with or spend time with after parental separation. For example, no guidelines state that children should spend 50:50 hours with each parent. Instead, both parents should discuss their child’s individual needs and agree on how the child or children will spend time with their parents and where they will live.
You might have heard terms like “custody” or “contact arrangements” in the past. However, Australian family law no longer uses these terms. Though the Court can get involved, you and your former partner can also come to an informal agreement with each other, or even make a more formal parenting plan, or give consent orders. Both these formal agreements set out arrangements for children. However, only parenting orders make legally enforceable obligations.
What are the best interests of the child?
Australian laws set out a list of factors to help assess what is in the child’s best interests. These are:
- The child’s developmental, psychological, cultural and emotional needs
- The capacity of each person who will be providing for the child’s developmental, psychological, emotional and cultural needs
- The right to enjoy their culture, for Aboriginal and Torres Strait children
- The child’s views
- The safety of the child, as well as people who care for the child (including family violence and family violence orders)
- The benefit of having a relationship with their parents and other people who are significant to them
In addition to these factors, both parents must financially support the child after separation, regardless of who the child now lives with. You and your former partner can manage this between yourselves, or apply for a child support assessment.
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Can a father take a child away from the mother in Australia?
No. In Australia, a parent can’t legally just take a child away from their other parent.
Though both parents usually have equal legal rights and responsibilities for their children’s care, one parent can’t take a child without regard for their best interests or legal processes.
Instead, a court order requiring the child to live with either the father or the mother is needed. This is called a parenting order. The Family Court may issue a parenting order when parents disagree on the arrangements for their child. Parenting orders clarify how parents will share their responsibilities. This includes how much time the children will spend with each parent, where they live, and who decides about their care. Parenting orders prevent future disputes and ensure both parents understand their responsibilities.
Sometimes, a parent can deny access to a child without a custody agreement or a Court order. This is usually when a child’s safety and well-being are at risk.
What if a parent withholds a child from another parent without a court order?
The Court generally prefers that a child be able to spend quality time with each parent. However, this is only true in situations where there are no concerns for the safety or well-being of the child when with each parent.
In the situations of a mother withholding a child from the father in Australia, or vice versa, it is illegal to withhold a child against Court orders. It is also illegal to withhold a child from court agreements.
In any situation, though denying access to a child against legal agreements is against the law, the child’s well-being and safety are always the primary concern. After the Court considers all the factors and decides a parent cannot provide a safe and nurturing environment, it may then choose to deny access.
Why would a parent deny access to a child?
No parent is allowed to take a child away from the other unless the other parent is proven to be a danger to the child in some way, or the child’s safety and well-being are otherwise at risk. These scenarios include:
- Bringing the child into unsafe situations
- Drug or alcohol abuse
- A history of violence towards the child or the other parent
- Extreme mental health issues
- Criminal activities
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Grounds to terminate parental rights in Australia
Much like the reasons for withholding a child, you can lose parental rights if you are thought to have abused or neglected a child. This is especially likely if this happened over an extended period.
Another reason to terminate parental rights is if unfit parenting is suspected, whether due to mental illness, substance abuse, or criminal history. Then there’s abandonment, where a parent either fails to make contact or does not provide financial support for an extended period.
Another reason parental rights may be terminated is failure to maintain parental responsibility. This occurs when a parent consistently fails to fulfil their legal obligations, like participating in the child’s life or paying child support.
Here at JustFund, we give funding to help you get the divorce settlement that’s truly right for you and your family. Contact us by email at enquiries@justfund.com.au, phone 1300644980, or use our contact form.
