We’ll go through how to organise each method of arranging custody. We think it’s also important to discuss AI tools and their pros and cons.
Key takeaways
Full custody refers to long-term decision-making responsibilities and living arrangements.
There are various circumstances where one parent may seek an application for sole custody.
Parents can agree to arrangements with a ‘parenting plan’ or a ‘consent order’ from the Court.
Parents who can’t agree may apply for a child custody order.
Each method of arranging custody has its own application process.
What is full custody?
There’s more nuance to the concept than you may initially expect. Australian law breaks down parenting matters into two broad categories, parental responsibility and living arrangements.
Parental responsibility
What is ‘parental responsibility’? Under the Family Law Act parental responsibility is the parents’ duties and authority over their children. It covers significant long-term decisions about a child’s upbringing. These decisions may include education, health, and religious or cultural instruction.
What about equal shared parental responsibility?
The Family Law Act used to presume that parents should have an equal shared parental responsibility say in long-term decision-making, unless there was a compelling reason they shouldn’t. As of 6 May 2024, the Amendment Act 2023 removed this presumption. This change addressed a concern that the Family Court was consistently misinterpreting shared equal parental responsibility. The Court often believed there was a requirement to grant equal time with the child’s upbringing.
Living arrangements
How will the child spend time with each parent? Physical custody can be organised in various ways. The child may spend equal time with each parent. Alternatively, one parent may be the primary caregiver with the other parent having visitation rights.
What are the grounds for sole parental responsibility?
There are various reasons why the Court may grant full parental responsibility and exclusive living arrangements to one parent. These include the following.
Family violence
The Court takes anything that risks a child’s safety or exposes them to family violence very seriously. Family violence can manifest in many ways, including:
Physical harm.
Emotional or psychological abuse.
Financially controlling behaviour.
Social isolation.
Evidence of this behaviour may provide ample grounds for the Court to grant one parent sole custody.
Substance abuse
Substance abuse may indicate that a parent is unfit to have parental responsibility for their child. The Court may take various factors into account. These could include instances of relapse and the parent’s willingness to pursue rehabilitation.
Lack of involvement
The Court considers the willingness of each parent to take on parental responsibility when making child custody order. If one parent has abandoned their responsibilities to their child, the Court will likely grant sole custody to the other parent.
Parental alienation
Parental alienation occurs when one parent attempts to manipulate their child into turning against the other parent. This can take various forms, such as:
Belittling the other parent in front of the child.
Encouraging the child to pressure the other parent over issues such as child support.
Making false allegations to the child about the other parent.
The Court doesn’t expect separated parents to be on the best of terms. However, they are expected to be able to maintain healthy communication for the good of their child. If there’s evidence that a parent’s behaviour towards their child is having a negative impact on their welfare, full custody may be considered.
Mental health concerns
A parent must demonstrate the capacity to assume responsibility for their child. In some cases, mental health concerns may render a parent incapable of having caring or decision-making responsibilities. The Court may consider a parent’s ability to manage their condition and safely make decisions for their child.
Evidence required
You’ll likely be required to provide evidence to show that full custody is needed for the child’s well-being. Depending on the facts of the case, evidence may include:
Police reports.
School reports.
Psychological evaluations.
Witness statements.
Family report from a family consultant.
Existing domestic violence orders.
Full custody application
There are circumstances where one parent seeks sole parental responsibility. This can be organised in two ways: by agreement between the parents or through a court order litigated through the Family Court.
Full custody by agreement
When parents agree on parenting arrangements, they can organise their agreement with a ‘parenting plan’. They may also apply for a ‘consent order‘ from the Court. A parenting plan sets out parenting arrangements in writing. It’s not legally enforceable. However, it may have legal implications for future orders. A consent order is a written agreement approved by the Court, making it legally binding.
Family Court proceedings
One parent may have a problem with the other party having sole custody. The parent seeking sole custody must apply to the Family Court for parenting orders. The Court will consider various factors, with the child’s best interests paramount. A child custody order will only grant sole parental responsibility if it’s the most beneficial arrangement for the child.
The Court prefers not to order sole parental responsibility. It must be satisfied that there are reasonable grounds to do so. The Court generally believes that children benefit from a meaningful relationship with both parents. However, this is only appropriate if it’s safe. The primary considerations made by the Court when determining if shared responsibility is appropriate are:
Any history of family violence, abuse or neglect of the child.
Any family violence orders applied to the child or a member of their family.
Applying For Full Custody of A Child
Let’s look at the actual steps involved in seeking full custody of a child. There are different ways to organise full custody. Generally, the best way to organise parenting arrangements is by agreement. Agreements can be informal or legally binding.
Verbal agreement
Verbal agreements offer the greatest flexibility when establishing custody arrangements. However, they can also cause the most problems if the agreement fails. Typically, you’d only want to rely on a verbal agreement if the ex-spouses remained on good terms after separation. Here are some factors to consider.
Flexibility
One thing we can say for verbal agreements is that they’re flexible. Perhaps a little too flexible. When you don’t have to worry about a written document, you can make changes basically whenever you need to. This can cause a couple of problems. For one, parents may be too tempted to stray from their agreement. This can frustrate the other parent and decrease stability for your child. You may also forget what you’d agreed to. This can cause confusion.
Communication
For a verbal agreement to work, the parties need excellent communication. The other parent must be informed as soon as possible before making changes. If conflicts crop up, have resolution methods in place. If problems start becoming too much to manage, it may be time to create a written agreement.
Written parenting plan
A parenting plan isn’t legally recognised under the law either. However, it does offer a more concrete organisation. Even though it isn’t legally binding, treat it like a legal contract. If you agree to changes, make sure the plan is updated to incorporate them.
Visitation
Sole physical custody of a child doesn’t mean that one parent won’t see them. Visitation rights should be considered as giving a child the chance to develop a good relationship with both parents is important. The specifics of the arrangement depends on your circumstances. A parent may visit the child on a weekly basis, or during special occasions like birthdays or holidays.
Decision-making
Custody doesn’t just relate to living arrangements. It also encompasses how you will make major decisions over a child’s life. This includes how you will manage the child’s education, medical needs, religious and cultural instruction, etc. With full custody, one parent may have responsibility for all major decisions or for specific areas. For example, one parent may take responsibility for dictating a child’s educational needs.
Formalising the agreement
Once you’re happy with how the agreement has been drafted, both parents should sign the agreement and keep a copy.
Consent order
Consent orders are recommended for most co-parents. They provide the security of legal enforceability while encouraging cooperation between parents. If you’ve settled on full custody, here’s how to apply for a consent order.
Step one: Seek legal advice
You might think, “Why do we need a family lawyer? We can organise custody between ourselves.” And you might be right. If you’re on good terms with your former partner, parenting matters can be relatively simple. But if things go wrong, they can go very wrong. This can lead to major problems, especially when there are children involved. Hashing matters out in court can be a long and exhausting experience. Any small mistake can mean delays and significant expense.
What if you approach a lawyer early? They can advise you about the best course of action and prevent you from making mistakes. This can save you a lot of time and money. The Family Court has amended processes to ease self-representation. The reality is still that self-represented parties have a statistically lower success rate. Preparation is key. Save yourself the worry and find a good lawyer.
Step two: Fill out the application form
The application form is on the Federal Circuit and Family Court of Australia website. You may opt to have a lawyer fill out the application form in consultation with you, or use the Do-It-Yourself kit.
If you’re using the DIY kit, carefully read the instructions at the top of the form. The first sections will ask for basic personal information and the details of any existing court orders. Question 14 will ask if one parent will have sole responsibility for all major decisions, certain major decisions, or will opt for joint decision-making. Question 14A asks if the child will spend time with both parents. Provide a reason for your choice.
The next part of the application will ask about the children involved in the consent order. You’ll then work out the details around your preferred living arrangements and how you’ll manage major decisions.
Question 25 requires the applicant to certify that there are no allegations or risk of child abuse. After completing this section, both parties sign the Statement of Truth.
Step three: Submit the application
File the completed application electronically through the Commonwealth Courts Portal. If you’re unable to eFile, you can file the application in person at a court registry.
Parenting order
Sometimes, there’s a dispute over full custody. In these cases, the Court can make sole child custody arrangements through a parenting order. The parenting order process is more involved than consent orders.
Step one: family dispute resolution
The Court requires parties seeking child custody order to work with a family dispute resolution practitioner first. The Australian family law system wants to encourage parents to cooperate as much as possible. If the parties make a genuine effort to resolve their differences, the practitioner will provide a certificate that can be attached to the application.
Under the following circumstances, a party may be exempt from this requirement:
There’s evidence that one party has committed abuse of the child.
There’s evidence that one party has committed family violence.
There’s a risk of child abuse if the proceedings are delayed.
There’s a risk of family violence by one of the parties to the proceedings.
Step two: Complete an initiating application form
Unless you’re seeking financial orders simultaneously, focus on the sections related to parenting orders. You can also apply for interim orders with this form. Parties may wait for up to 12 months for final orders. Interim orders are a temporary solution that are in effect until the Court grants final orders. Include an affidavit with evidence supporting your case for an interim order. Some interim orders you can seek include:
The allocation of sole parental responsibility to one parent regarding major decisions.
Restricting a party from moving a child interstate.
Establishing a child’s living arrangements.
Once the application is completed, you can eFile the application along with the necessary supporting documentation, including:
Genuine Steps Certificate from a family dispute resolution practitioner.
Notice of Child Abuse, Family Violence or Risk that reports any incidence or risk of abuse or domestic violence from substance abuse or other concerns.
Parenting Questionnaire.
Step three: Serve the application
You’ve submitted all required documentation. You must now serve your former spouse. Service should include:
The Initiating Application.
The Parenting Questionnaire.
The Notice of Child Abuse, Family Violence or Risk.
The respondent will have the opportunity to provide a Response to an Initiating Application if they wish to dispute the parenting order. This response must be served on the original applicant.
Step four: Attend the court hearing
You won’t necessarily need to attend a hearing in person. You could connect over the phone or through a video conference. Parties can speak to evidence for their case and refer to testimonies from witnesses. They will also have the option to cross-examine the other party’s witnesses. The Court will decide based on the evidence provided if it’s in the child’s best interests to be under the full custody of one parent.
AI-Assisted Custody Applications & Digital Parenting Plan Tools
The landscape of family legal law is evolving. Some parents now use AI-assisted tools to prepare their custody applications and streamline the process. These platforms may:
Provide basic information you can use to do further research.
Help you organise your information.
Offer digital parenting plan templates.
Before you get too comfortable with AI applications, there are some major risks you must consider, such as the following.
Inaccuracies
Programs like ChatGPT are large language models (LLM). LLMs are designed to generate answers that seem plausible. But this should be a major red flag. Legal documents require accurate information and specific wording. There is a chance that an LLM may simply make up details of your case. Submitting false information to the Court will have severe consequences.
Outdated information
Laws are constantly changing. Amendments to laws and legal processes must be considered when making applications and submissions to the Court. LLMs aren’t equipped to provide the most up-to-date information. This can lead to delays if applications have to be adjusted.
In addition, recent court decisions may impact how your case is handled. Without professional advice, you may not present your case effectively.
No human touch
Generative AI can seem impressive. But it doesn’t measure up to an accredited family law specialist. It’s tempting to think that it understands you. But that’s an illusion. It’s just really good at stringing together words that seem to work well together.
AI chatbots won’t give you a tailored legal strategy for you. Some things are better left to the professionals.
Privacy concerns
Parties should not input any sensitive information into an LLM. This may include:
Legally privileged information.
Personal information.
Confidential information.
Generative AI models may divulge information you provide them and compromise your or someone else’s privacy. It’s possible that you could also breach suppression orders unintentionally. This can be particularly concerning when a child’s physical safety is at risk.
How to use AI in family law
If you’re using AI in your preparation, here are some tips to keep in mind:
Use AI to organise information and as a jumping-off point for further research. Don’t treat any generated answers as legal advice.
Don’t provide any sensitive information.
Verify any legal references with reputable sources.
Drafting legal documentation or applications should always be handled with the assistance of a legal professional.
Sole Custody and the Child’s Best Interests in Australian Family Law
In Australian family law, the legal system prioritises the child’s best interests and child’s welfare when deciding where a child lives primarily. While shared parental responsibility is often preferred, the Court may grant sole custody if a parent’s inability to care or if a parent poses a risk is proven. The Court considers family relationships, the child’s life and views, and any parenting agreement. There is no automatic legal presumption that both parents are equal, sometimes, one parent exclusively is given responsibility. If agreement fails, a court date is set to determine the best outcome.
From our clients
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Conclusion
Applying for full custody involves establishing sole parental responsibility of a child. Sole parental responsibility can come by agreement or through a parenting order from the Family Court if the other parent objects. It’s a complex process that benefits from the assistance of a family lawyer. There are many reasons why the Court may consider full custody necessary. However, it’s important to be able to provide evidence for your case.
Shanahan Family Law will help. We are experienced with child custody cases.. We can ensure you understand your rights and obligations. Take the guesswork out of family law. Here’s a word from one of our clients.
The most amazing and professional team who really understood my plight and fought for me and my daughter and won.
– Jayne Taylor
If you need help with family law matters, contact us for a free discovery call.
Next Steps
If you’re considering applying for full custody, consult an experienced family lawyer as early as possible. Digital and AI-assisted tools can simplify the process, but legal guidance ensures your application is robust and compliant with current law.
Need legal representation?
Contact Shanahan Family Law for a confidential consultation. Explore our online resources for more guidance.
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- Discover The Deep Impact Of Parental Separation On Children’s Growth
- Explore the 4 Practical Tips for Healthy Parenting After the Separation
FAQ
The above information is intended to be general advice only and is not a substitute for personalised advice. Because it does not consider your individual circumstances, it is not intended to be relied upon and any loss or damage arising from any such reliance is disclaimed. Any financial or legal decisions should only occur after you have received tailored advice from a legal or financial professional.
