Something which shocks many parents, especially mothers, when they discuss with their family lawyers what is going to happen with regards to their children after a divorce, is that the chances of obtaining sole custody are often slim.
In fact, the concept of custody, meaning one parent makes all the decisions for their children to the exclusion of the other parent, doesn’t really exist in Australian family law. This is due to the family Law Act of 1975 enshrining the principle of shared parental responsibility.
This principle means that unless there are sound and valid reasons not to, the court will take the view that it is in the interests of children that their lives have input from both parents.
In practical terms this means a mother cannot change the school the children attend or agree to the child having a major medical procedure without discussing it, and normally agreeing on it with the child’s father.
Shared parental responsibility may not always seem fair, especially to mothers who may have had to put up with a husband who had affairs, or who did not contribute to the home, as they should have. A perfectly reasonable argument can be made that it is, indeed, extremely unfair to that mother.
However, the Family Law Act’s shared parental responsibility is not there to necessarily be fair to either or both parents. Instead, that part of the legislation is there to ensure that the best interests of the child is best served.
Like it or not, the overriding principle of Australian family law is that having both parents play role in a child’s life is better than just one parent doing so.
This is why so many mothers are upset when they realise that rather than being granted sole custody, they are granted parental responsibility, but have to share that responsibility with the children’s father, whom at the time of divorce they might believe is the worst possible person to have any influence on the upbringing of their children.
Although this is the normal scenario, above we used the words ‘unless there are sound and valid reasons not to’, and in many cases, there will be such reasons, where a court may not order shred parental responsibility.
In these cases, they will grant a sole parenting order. It should be noted that this is not ‘sole custody’ which is a legal term no longer used in relation to family law.
The main reason for granting a sole parenting order to a mother, for example, will be that the court believes that the father presents a risk or danger to the children, as a result of evidence of violence or abuse. These may include police reports, statements from witnesses, and any other evidence which is irrefutable.
Other reasons do exist for granting sole parenting order. An example is the father’s mental or physical health being such that they would be incapable of fulfilling their parental responsibilities. This would also apply to a father who had serious alcohol or illegal drug dependency and no obvious reason to believe they are likely to be overcome.
When sole parental responsibility is granted, the the parent who has it is no longer obliged to seek agreement nor even discuss the major decisions relating to their children’s’ upbringing.
In some cases, there may not even be visitation orders, although whenever possible the court will seek to allow some form of contact, even if that is under strict supervision.