Every parenting decision should prioritise the child’s best interests, particularly when applying for full custody of a child, as the Family Court’s focus remains on ensuring the child’s safety, stability, and wellbeing. Understanding the process requires careful consideration of the Family Law Act principles and the particular circumstances that may warrant sole parental responsibility.
Divorce can introduce all kinds of parenting complications, particularly under family law, where parents are required to make decisions that place the child’s best interests first. When parents cannot get along, disputes about parental responsibility often arise, and in some cases, applying for full custody of a child may be necessary to protect a child from ongoing physical or psychological harm. Under the Family Law Act, the Federal Circuit and Family Court of Australia carefully considers whether issues such as family violence or child abuse are present, as these factors can significantly affect parenting arrangements.
While family dispute resolution and a parenting plan are encouraged wherever possible, the Family Court may intervene when agreement cannot be reached. This article explores when the Federal Circuit Court may grant sole custody, how parental responsibility is assessed, and the steps involved in applying for full custody of a child under Australian family law.
Grounds for Full Custody in Australia
The Australian Institute of Family Studies (AIFS) has done important research into parenting agreement post-separation. Their data provides crucial statistics:
- About 3% of parents use the Federal Circuit and Family Court to organise parenting matters
- 45% of the cases that went to court resulted in sole parental responsibility for the mother, while 11% went to the father
- Only 3% of all court orders included no contact with one parent
What Is Full Child Custody?
It is important to understand what is meant when using terms like sole custody under family law, as parenting arrangements can take many different forms. The Family Law Act doesn’t actually refer to ‘custody’. Australian family law matters involving children are divided between the child’s living arrangements and parental responsibility:
Living arrangements: Will the child live primarily with one parent? The child may split their time between two households, or one parent may spend time with the child in pre-arranged visits. Where the child lives primarily with one parent, this affects how children spend time with the other parent.
Parental responsibility: There are many major long-term decisions about the child’s life that parents need to consider. This includes the child’s educational needs, religious or cultural instruction, and medical requirements, among others. Parental responsibility includes making major long-term decisions about the child’s education, health, and welfare.
Legal Definitions of Custody
The term ‘full custody’ is not a legal term used by the Family Court of Australia. Instead, the court uses specific terminology to describe parenting arrangements:
Sole parental responsibility means one parent has the authority to make major long-term decisions for the child without consulting the other parent. This includes decisions about the child’s education, health, welfare, religious and cultural upbringing, and the child’s upbringing overall.
Shared parental responsibility means both parents share decision-making authority for major long-term issues about the children. Both parents must consult each other and make joint decisions on important matters affecting the child’s life. However, the court does not apply any presumption that parental responsibility must be shared. The court does not apply equal shared parental responsibility as a starting point. Instead, every decision is determined by what is in the child’s best interests based on the particular circumstances of each case.
Parenting orders are legally binding court orders that deal with parental responsibility and living arrangements for children. These orders specify where the child lives, how much time they spend with each parent, and who makes major decisions about their upbringing.
Consent orders are legally binding agreements approved by the court regarding parenting arrangements. These occur when both parents agree on arrangements and submit them to the court registry for approval, making them enforceable by law.
A parenting plan is a written agreement between parents about parenting matters. While a parenting plan is not legally enforceable like court orders, parenting plans may have legal implications for future orders if the court considers them when making decisions.
The court may appoint an independent children’s lawyer to assist in cases involving children’s best interests. This lawyer represents the child’s interests independently and provides the court with an objective view of what arrangements would best serve the child’s wellbeing.
When Is Full Custody Warranted?
Under family law, one parent may be granted sole parental responsibility, allowing them to make major decisions without joint decision making, particularly where family violence affects the child or the other parent. Although parental responsibility is usually shared, there are several reasons why sole custody may be granted.
Factors Influencing Custody Decisions
The court must consider the best interests of the child when making parenting orders. This is the paramount consideration under the Family Law Act, and all other factors are assessed through this lens. The court evaluates the child’s safety and wellbeing, relationships, parental capacity, cooperation, the child’s views, and practicalities when determining custody arrangements.
The court assesses the child’s best interests by considering safety, stability, the relationship with the child, and the ability to provide a nurturing environment. Stability in living arrangements, continuity in schooling and community connections, and the emotional security provided by each parent are all evaluated when determining custody outcomes.
Compelling evidence must be provided to demonstrate that shared responsibility is not in the child’s best interests for sole parental responsibility to be granted. The court requires reliable, credible evidence that clearly establishes why one parent should have sole responsibility.
Common grounds for denying shared responsibility include safety concerns, parental incapacity, abandonment, and high conflict. Where family violence, substance abuse, mental health issues, parental absence, or ongoing high-conflict behaviour make shared decision-making unworkable or unsafe, the court may grant sole parental responsibility to protect the child’s welfare.
The court may appoint an independent children’s lawyer to represent the child’s interests in custody cases. This lawyer acts independently of both parents, investigates the child’s circumstances, and makes submissions to the court about what orders would best promote the child’s wellbeing.
The court may require a family report to be prepared to assist in making custody decisions. A family consultant conducts interviews, observations, and assessments of both parents and the child, then provides an independent expert report with recommendations about parenting arrangements that best serve the child’s interests.
Family Violence and Child Abuse
The court’s only concern is the child’s welfare. The law requires that the court decide what arrangements would promote the child’s safety and prevent exposure to child abuse or domestic violence. The court may consider any existing family violence orders or evidence presented that indicates behaviour, such as:
- Emotional abuse
- Sexual abuse
- Financial control
- Physical or psychological harm
- Threats or intimidation
- Stalking or harassment
The court considers the child’s safety as a central factor in custody decisions. Protection from physical or psychological harm, including exposure to family violence, abuse, or neglect, is the court’s primary concern. The court may consider allegations of family violence or risk of harm when determining custody arrangements. Evidence of domestic violence, child abuse, or behaviour that poses a risk to the child’s wellbeing can result in supervised contact, limited parenting time, or sole parental responsibility being granted to the protective parent. A history of family violence significantly impacts custody outcomes.
Substance Abuse Affecting Parenting Ability
Under family law, parents must demonstrate that they have the capacity to provide for the child’s life and ongoing child’s developmental needs. A dependency on alcohol or other drugs may significantly affect this capacity. The court may look at:
- The severity of substance abuse
- The parent's willingness to attend rehabilitation
- Evidence of harm to the child resulting from substance abuse
Mental Health Concerns
Mental health concerns do not, of themselves, prevent a person from taking on parental responsibilities. The key issue is how the condition affects a party’s ability to support the child’s life, ensure their safety, and meet their needs. The court may take into account:
- How effectively the mental health condition is treated
- Whether the child is at risk of harm
- How significantly the parent's judgment and capabilities are impacted
Parental Alienation
The court aims to support a child’s right to have a meaningful relationship with both parents. However, there are cases where one parent actively undermines that relationship. This may include:
- Using denigrating language in front of the child
- Causing delays to disrupt a parent's time with the child
- Making false allegations
- Coaching the child to speak poorly of the other parent
The Child's Views
The court may consider the child’s wishes when assessing parenting arrangements. While the child’s views are unlikely to be decisive, they may be taken into account where doing so aligns with the child’s best interests. The child’s views may be considered by the court, often through a family report or an independent children’s lawyer.
A Child of Custody Full for Applying: Step-by-Step Process
If you believe that sole custody is appropriate for your particular circumstances, here are the steps to take when applying for full custody of a child, with careful consideration given to the child’s developmental needs and their overall child’s upbringing.
Importance of Legal Advice
The court is unable to provide legal advice to people with family relationship issues. While court staff can provide procedural information about forms, filing requirements, and court processes, they cannot advise you on your specific legal situation.
It is advisable to obtain legal advice before making a decision about what to do or before applying to the courts. A family lawyer can assess your individual circumstances, explain how the Family Law Act applies to your situation, and help you understand the likely outcomes based on your evidence.
A lawyer can help you understand your legal rights and responsibilities in custody cases. This includes explaining what parental responsibility means, what living arrangements the court can order, what evidence will be most persuasive, and what obligations you have as a parent under Australian family law.
Legal advice can help identify realistic outcomes and evidence needed for custody applications. An experienced family lawyer can review your case, identify what evidence will be most persuasive to the court, and advise whether your application for sole parental responsibility is likely to succeed.
Obtaining legal advice is crucial when considering family dispute resolution in custody matters. A lawyer can advise whether a family dispute resolution service is appropriate in your circumstances, particularly where family violence or safety concerns exist.
Legal representation can provide guidance on court intervention and custody rights. If your matter proceeds to court, a lawyer can represent you at court hearings, cross-examine witnesses, prepare legal submissions, and advocate for parenting arrangements that protect your child’s best interests.
Self-represented litigants have a statistically lower success rate in custody cases compared to those with legal representation. Research shows that parties without lawyers face significant disadvantages in family law matters.
Step 1: Attempt Family Dispute Resolution
Parties are required to try to resolve parenting disputes before seeking court intervention. A family dispute resolution practitioner can help parents discuss disagreements and organise consent orders that set out how children spend time with each parent.
Before filing an Initiating Application asking for parenting orders, you must make a genuine effort to resolve the dispute and comply with pre-action procedures, including attempting Family Dispute Resolution with a Family Dispute Resolution Practitioner. The court requires parties seeking parenting orders to work with a family dispute resolution practitioner first, unless exemptions apply.
Unless you are granted an exemption, you will need to file a current Certificate of Family Dispute Resolution, known as a section 60I certificate, issued by a qualified Family Dispute Resolution Practitioner. This certificate confirms that you have made a genuine effort to resolve your parenting dispute through mediation. If you do not have a section 60I certificate and are not granted an exemption, then your Initiating Application will be rejected.
For most parenting applications, parties must attempt Family Dispute Resolution and obtain a section 60I certificate, unless an exemption applies. Mediation is required before applying to the court for parenting orders unless immediate risk is present, which necessitates obtaining a Section 60I Certificate.
Exemptions from Family Dispute Resolution may apply in cases of:
Urgency (where the child’s safety requires immediate court intervention)
Family violence or abuse (where it would not be safe to participate in mediation)
Situations where the other parent cannot be contacted or refuses to participate
Cases where a previous attempt at family dispute resolution has occurred within the last 12 months
Exemptions from the requirement to attempt Family Dispute Resolution may apply in cases of urgency or family violence/abuse. Parties are not required to follow or continue pre-action procedures if it is not safe to do so or if your application is urgent.
Exemptions from the requirement to attempt Family Dispute Resolution may apply in cases of urgency or family violence/abuse. Parties are not required to follow or continue pre-action procedures if it is not safe to do so or if your application is urgent.
Mediation Services After Separation
Family Relationship Centres offer mediation services and parenting advice after separation and serve as local resources in Maroochydore. These government-funded centres provide free or low-cost family dispute resolution services, parenting programs, information sessions, and referrals to other support services, including assistance with paying child support matters.
Step 2: Gather Evidence
You’ll need evidence to bolster your case. Documents required for filing an application include an Affidavit, a Notice of Child Abuse, Family Violence or Risk, and a Genuine Steps Certificate. These may include:
- Police reports: Reports of domestic violence are strong evidence that sole custody may be needed
- Medical records: Expert evidence of complex medical needs may indicate one parent lacks the capacity to care for the child. Medical records can document the child's education and health needs
- Family reports: A family consultant can make recommendations about parenting arrangements
- Witness statements: Witnesses could be family members, family friends, or others who can fill out affidavits
Documents required for filing an application include:
The Affidavit must contain your sworn evidence about why sole parental responsibility is necessary and in the child’s best interests. This document should detail the facts of your case, the history of the relationship, parenting arrangements to date, and the specific reasons you believe sole parental responsibility should be granted.
The Notice of Child Abuse, Family Violence or Risk is mandatory if there are allegations of abuse or violence. This form ensures the court is immediately aware of safety concerns and can take appropriate protective measures.
The Genuine Steps Certificate (section 60I certificate) confirms you have attempted family dispute resolution unless exempted.
Step 3: File Initiating Application for Parenting Orders
Applications are typically made online through the Commonwealth Courts Portal. Select the orders being sought on the initiating application form. Attach an affidavit with the evidence showing that parenting orders are needed.
There are two ways to apply for parenting orders: by agreement between the parents or through a court order from the Family Court. If there is no agreement and your application needs to be determined by the court, then one party can start proceedings by filing an Initiating Application to ask the court to make orders.
An application for parenting orders must include a current Certificate of Family Dispute Resolution, known as a section 60I certificate, unless an exemption applies. Without this certificate or a valid exemption, your application will be rejected.
Applications seeking sole parental responsibility and primary care are evidence-based and must be supported by reliable material. You will need to provide affidavits, supporting documents, and evidence that demonstrates why sole parental responsibility is in the child’s best interests.
The court will consider the child’s connection to Australia and the court’s ability to make orders when determining jurisdiction. This is particularly relevant in cases involving international elements.
The court may order a family report or appoint an independent children’s lawyer in appropriate matters. A family report provides expert assessment of the family situation and recommendations for parenting arrangements.
The court may require you to file the other documents set out at paragraph 2.5 of the Family Law Practice Direction: Parenting Proceedings at a future date. These additional documents help the court understand the full context of your case.
If you are seeking child support orders only and no other type of financial or parenting orders, there is no fee payable and you can eFile your Initiating application. However, applications involving parenting orders typically require payment of court filing fees. Child support matters may be addressed separately or alongside parenting orders.
If you cannot agree about relocating, you can apply to a court for orders to allow you to move. Relocation cases require careful consideration of how the move would affect the child’s relationship with both parents.
To apply for sole parental responsibility in Maroochydore, you file with the Federal Circuit and Family Court of Australia after attempting Family Dispute Resolution, unless an exemption applies.
Step 4: Serve Application on Other Parent
The other party should be given the opportunity to respond to the application for parenting orders. This requires the application to be formally served, which must be done by a third party over the age of 18. The respondent must receive the application at least seven days before the court hearing.
Step 5: Attend Family Court Hearings
There are a series of court events involved in creating parenting orders when applying for full custody of a child:
First court event: This is a procedural court hearing that is usually held within six to twelve weeks of filing an application for parenting orders. The judicial officer will check that all required documents have been properly filed.
Interim hearing: This may only be needed if there are urgent matters to attend to, like temporary parenting arrangements or protection orders. The court can grant temporary orders that remain in effect until final orders are made.
Reports and conciliation: The court can commission a family report to assess the situation. An independent children’s lawyer may be required for a complex case to advocate for the child.
Final hearing: This is the last stage before final orders are decided on. This hearing may not be held for a year or two after the initial application. The parties can provide witnesses to testify and be cross-examined by the other side.
Step 6: Comply with Court Orders
A parenting order is legally enforceable. There are consequences for not complying with an existing order. Some actions the court can take are:
- Compensating a parent for time lost with the child
- Requirement to attend a parenting program
- Ordering one party to cover the other party's legal costs
- A fine or imprisonment for more extreme cases
A family lawyer can help you pursue a contravention application. You can also get legal advice from resources like Legal Aid and community legal centres.
Legal Aid and Support
Legal Aid Queensland offers free legal advice and may provide funding for a lawyer. Legal Aid Queensland is a government-funded service that provides legal assistance to people who cannot afford private legal representation. They offer free legal advice through their website, telephone advice line, and community legal education sessions. Legal Aid can also provide duty lawyer services at court for people who are self-represented.
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Conclusion
Sole custody is not common in Australia. However, there are situations where applying for full custody of a child may be in the child’s best interests, including where arrangements for care and financial support need to be clearly defined. Financial orders may also be considered alongside parenting arrangements to ensure the child’s ongoing financial support.
The process involves several critical steps, from attempting family dispute resolution to gathering compelling evidence and navigating court proceedings. Understanding how the Queensland Law Society and the Federal Circuit Court approach these matters can help you prepare your case effectively.
If you believe sole custody may be warranted in your particular circumstances, understanding the legal requirements and grounds for sole parental responsibility is essential. The Family Court of Australia prioritises the child’s safety, child’s wellbeing, and child’s developmental needs above all else when determining custody arrangements.
If you need assistance, we’re here to help. Contact us today for a free discovery call and get legal advice from experienced family law professionals.
