When parents separate, one of the most contentious issues they face is determining the custody and care arrangements for their children. In New South Wales (NSW), the Family Law Act 1975 (Cth) governs parenting disputes, ensuring that decisions are made in the best interests of the child.
Parenting disputes can arise over issues such as where a child will live, visitation rights, schooling decisions, medical care, and relocation concerns. When parents cannot agree on these matters, the Family Court of Australia or the Federal Circuit and Family Court of Australia (FCFCOA) may intervene to establish legally enforceable arrangements.
This article provides a detailed overview of how NSW courts determine custody arrangements, the legal principles involved, and the factors that influence judicial decisions.
The best interests of the child are the paramount consideration in all parenting disputes. This principle is enshrined in Section 60CC of the Family Law Act 1975, which outlines the factors courts must consider when determining custody arrangements.
The law prioritises two primary considerations:
If there is evidence of family violence or child abuse, the court will prioritise the child’s safety over maintaining parental relationships.
Equal shared parental responsibility means both parents have an equal role in making major long-term decisions about their child’s life, including education, healthcare, and religious upbringing. The court presumes that this arrangement is in the child’s best interests unless there is evidence of family violence or abuse.
However, equal shared parental responsibility does not mean equal time. The court may order that one parent have primary custody while the other has visitation rights, depending on the child’s needs and practical considerations such as:
In cases where a parent poses a risk to the child’s well-being, the court may order sole parental responsibility, meaning one parent makes all major decisions without consulting the other.
Courts assess a range of factors to determine what arrangement serves the child’s best interests. Key considerations include:
The court evaluates the existing relationship between the child and each parent, considering factors such as:
If the child is old enough and mature enough, the court may consider their preferences. There is no fixed age at which a child’s views become determinative, but older children’s opinions generally carry more weight.
The court assesses whether each parent can provide for the child’s:
If there is any evidence of domestic violence, abuse, or neglect, the court will prioritise the child’s safety. This may result in supervised visitation or restricted contact for the parent deemed a risk.
The court examines logistical factors such as:
When parents cannot reach an agreement, the court can issue a Parenting Order, which is a legally binding document that specifies:
If parents agree on custody arrangements but want them to be legally enforceable, they can apply for Consent Orders. This provides certainty and legal protection while avoiding lengthy litigation.
In cases where a parent poses a potential risk, the court may order supervised contact, meaning that visits must occur in the presence of an approved supervisor.
Before applying to the court, parents are required to attempt Family Dispute Resolution (FDR). This process involves working with a trained mediator to reach an agreement without litigation. If mediation is unsuccessful, the mediator will issue a Section 60I Certificate, allowing the case to proceed to court.
If an agreement cannot be reached, a parent may file an application with the Federal Circuit and Family Court of Australia. The application should outline:
The court will hold hearings where both parents present their arguments. If an agreement is still not reached, the judge will issue a final Parenting Order based on the child’s best interests.
No. A parent must seek permission from the other parent or obtain a court order before relocating with a child if the move affects the child’s relationship with the other parent.
Failure to comply with a court-ordered parenting arrangement can result in legal consequences, including fines or even imprisonment in severe cases.
Yes. Grandparents and other relatives can apply for parenting orders if they have a significant relationship with the child and it is in the child’s best interests.
Parenting disputes are often emotionally charged and legally complex. Courts in NSW prioritise the best interests of the child when determining custody arrangements, considering factors such as parent-child relationships, safety concerns, and practical considerations.
If you are facing a parenting dispute in NSW, legal representation is critical to ensuring the best possible outcome. Jones Hardy Law provides expert legal advice and representation in family law matters, helping parents navigate custody disputes with clarity and confidence. Contact Jones Hardy Law today at JonesHardyLaw.com.au for a confidential consultation.
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