Going Solo: Understanding the Grounds for Full Custody of a Child in Australia

When parents separate, the ideal scenario is often seen as shared care and shared decision-making for the children. However, life isn’t always ideal, and there are circumstances where one parent may seek, or the court may order, what is commonly referred to as “full custody.” In legal terms, this usually translates to one parent having sole parental responsibility (the exclusive right to make major long-term decisions) and the child living primarily with that parent. But what are the grounds for full custody of child in Australia? When does the court decide that one parent should take the reins completely? Let’s explore the situations where the court might depart from the idea of shared responsibility and grant one parent the primary role, all with a focus on clarity and the child’s best interests.

The Court’s Starting Point: Shared Responsibility

Before we delve into the grounds for full custody, it’s important to understand the foundation of parenting decisions in Australian family law. The Family Law Act 1975 operates on the principle to ensure that the best interests of children are met, including by ensuring their safety, and to give effect to the UN Convention on the Rights of the Child. In instances where there are no parenting orders, each parent ordinarily has parental responsibility for the child. This means that both parents are expected to be involved in making important long-term decisions about the child’s life, such as their education, health, and religious upbringing.  More often than not courts will make orders for both parent to have joint decision making about major longterm issues.

The Presumption of Equal Shared Parental Responsibility

The presumption of equal shared parental responsibility in family law has been abolished. Rather than automatically assuming equal decision-making power for both parents when making parenting orders, the court now focuses on what is in the child’s best interests when deciding parental responsibility. This means that parenting arrangements, including decision-making power and time with each parent, will be tailored to the specific circumstances of each family, with a greater emphasis on the child’s safety and wellbeing.

What “Meaningful Relationship” Means

The Family Law Act no longer explicitly states that it is in a child’s best interest to have a meaningful relationship with both parents, it has now been broadened to emphasise child having a relationship with its parents, and other people who are significant to the child, such as for example grandparents and extended family. While prioritizing the child’s safety and protection from harm. A meaningful relationship doesn’t necessarily mean equal time. It refers to a relationship that is significant and important to the child, allowing them to feel loved, secure, and connected to both parents and other people significant to the child. The nature of this relationship will vary depending on the child’s age, needs, and the family’s circumstances.

When the Path Diverges: Grounds for Full Custody of Child

Generally, the court is reluctant to order full custody (sole parental responsibility and the child living primarily with one parent) unless it is satisfied that this arrangement is in the child’s best interests, this is usually where joint decision making for major long term issues is not appropriate. The grounds for such an order are serious and typically involve family violence where there are serious concerns about the child’s safety and well-being. It also takes into consideration the parents capacity to provide for the child’s developmental, psychological, emotional and cultural needs.

1. Family Violence and Child Abuse: The Most Significant Ground

The most compelling ground for a court to grant one parent sole parental responsibility and primary care is evidence of family violence or child abuse. The Family Law Act prioritises promoting the safety of the  child and each person who has care of the child, which includes protecting them from being subjected to, or exposed to, family violence, abuse, neglect, or other harm.

• Evidence is Crucial: The court will require clear and convincing evidence of family violence or child abuse. This can include police reports, Domestic Violence Orders (DVOs), medical records, evidence from child protection agencies, and witness testimony.
• Risk Assessment: The court will conduct a thorough risk assessment to determine the nature and extent of the risk to the child. Depending on the severity of the harm caused and the the risk to the child and the non-abusive parent, the court will likely order arrangements that minimise or eliminate contact with the abusive parent, and grant sole parental responsibility to the non-abusive parent.

2. High Conflict and Inability to Co-Parent: When Cooperation Breaks Down

While not involving direct violence, a persistently high level of conflict between parents can also be detrimental to a child’s well-being. If parents are unable to communicate effectively or make joint decisions about their children, the court may find that joint decision making or equal shared parental responsibility is not in the child’s best interests.

• Impact on the Child: The court will assess how the ongoing conflict is affecting the child emotionally and psychologically. If the conflict is causing significant stress, anxiety, or hindering the child’s development, the court may intervene.
• Inability to Make Decisions: If parents are constantly at loggerheads over major decisions (e.g., schooling, healthcare), leading to uncertainty and instability for the child, granting sole parental responsibility to one parent may provide the necessary stability.

3. Significant Risk to the Child’s Welfare: Other Serious Concerns

Beyond family violence, other factors that pose a significant risk to a child’s welfare can be grounds for granting one parent full custody. These include:

• Substance Abuse: A parent’s chronic and unmanaged drug or alcohol addiction that impairs their ability to care for the child safely.
• Untreated Mental Health Issues: Severe mental health conditions that impact a parent’s parenting capacity and pose a risk to the child.
• Criminal Activity: A parent’s involvement in criminal behaviour that puts the child at risk of harm or exposure to an unsafe environment.
• Neglect or Failure to Provide Care: A history of a parent failing to meet the child’s basic needs for food, shelter, medical care, or supervision.
• Abandonment: A parent who has been absent from the child’s life for a significant period and has shown no interest in their well-being.

In these situations, the court’s priority is to protect the child from harm and ensure they are in the care of a parent who can provide a safe and stable environment.

4. The Child’s Mature Wishes: Giving the Child a Voice

While the court doesn’t simply do what a child wants, it will consider the views and wishes expressed by the child, particularly if they are of a mature age and their wishes are well-reasoned. If a child expresses a strong preference to live with one parent and for that parent to have sole decision-making power, and this aligns with other factors indicating that this is in their best interests, the court will take this into account.

5. Practical Considerations: Distance and Unavailability

In some rare cases, practicalities can contribute to the grounds for full custody. For example, if one parent lives overseas and is unable to be involved in the child’s day-to-day life or decision-making, or if one parent has been consistently unavailable due to work or other commitments, the court will likely make an order for the child to live with the more available parent and spend time with the other parent, however it is unlikely to make an order granting sole parental responsibility to the more available parent.

The Court Process: Seeking or Responding to a Full Custody Application

Applying for or responding to an application for full custody is a serious legal matter that requires expert guidance. The court will not make such orders lightly and will require substantial evidence.

Responding to a Full Custody Application

1. Legal Advice is Essential:

If you are considering seeking full custody or are facing an application for it, your first step must be to consult with a family lawyer. They will assess your situation, advise you on the likelihood of success, and explain the evidence required. They will also guide you through the complex court process.

2. Gathering Evidence:

Building a strong case for full custody requires compelling evidence. This can include:

• Detailed Affidavits: Your sworn statement outlining the history of concerns, specific incidents, and why full custody is in the child’s best interests.
• Supporting Documents: Police reports, DVOs, medical records, school reports, and any other documents that corroborate your claims.
• Witness Statements: Affidavits from individuals who have witnessed the concerning behaviour or its impact on the child.

3. Family Dispute Resolution (FDR):

Unless there are exceptions (such as family violence or urgency), you will generally need to attempt Family Dispute Resolution (mediation) before filing a court application for parenting orders. Even if you are seeking full custody, the court encourages attempts at resolution outside of court.

4. Court Proceedings:

If the matter proceeds to court, the process can involve interim hearings, conciliation conferences, family consultant reports (where a court-appointed expert assesses the family and provides recommendations), and potentially a final hearing where a judge will make a decision based on all the evidence.

The Child’s Best Interests: The Guiding Principle

Throughout any case involving parenting arrangements, including applications for full custody, the court’s paramount consideration is always the child’s best interests. The Family Law Act outlines a list of factors the court must consider when determining what is in a child’s best interests. These include:

• what arrangements would promote the safety of the child and each person who has care of the child (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm)
• any views expressed by the child;
• the developmental, psychological, emotional and cultural needs of the child;
• the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
• the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
• anything else that is relevant to the particular circumstances of the child.

The court will weigh up all relevant factors to determine the parenting arrangements that best meet the child’s needs and ensure their safety and well-being.