Divorce and separation in Australia
Australia’s family legislation operates on the principle of a no-fault divorce. This means when you apply for a Divorce Order, the Court will not consider the reasons for the marriage ending. They will only consider the likelihood that the two parties will reconcile.
The Australian Bureau of Statistics released data in 2020 which showed that 49,116 Divorce Orders were granted in 2019.
Many of the couples who were granted Divorce Orders had children during the relationship.
We take a look at what typically happens to children after divorce in Australia.
Child custody in Australia
A parent who does not have sole custody of their child may still be required to pay Child Support in line with the Child Support (Assessment) Act 1989 (Cth).
In most cases the parents will reach an agreement about parenting arrangements and make a parenting plan by themselves. Even if you have done this, you can still apply to the Family Court of Australia for a Consent Order. A Consent Order makes the agreement binding in law.
Father and mother child custody statistics in Australia
There are a lot of misconceptions about child custody in Australia. In 1997, the Australian Institute of Family Studies conducted a study which found:
- when the Family Court makes child custody arrangements, 93% of parents will share equal parental responsibility.
- only 3% of fathers will have no contact with their children.
- when the Family Court makes a Parenting Order, parents will share equal parental responsibility around 40% of the time.
- 68% of children lived in single parent families and 20% lived in blended families where they have step-brothers and sisters and a step-parent.
- 21% of sons lived with their biological father, compared with 15% of girls
- 4% of Court Orders mandate that the child should only have supervised contact with one of their parents.
- 45% of court proceedings result in sole custody being awarded to the mother. 11% of fathers will receive sole custody. 3% of court cases result in a Court Order that mandates no contact with one of the child’s parents.
- It is a common misconception that the Courts decide parenting matters, with only 3% of cases going to court and only 6% of parents using family dispute resolution services or lawyers.
- Just under 10% of children have no contact with one of their parents.
- Under 20% of children spend every night with their mother and only spend time with their father during the day. This is a more common arrangement for children aged under two years.
- 84% of parents do not use a family dispute resolution service after separating from their former spouse.
- around 30% of children had been separated from their parents for a significant time, with those children living with a grandparent or other family members.
The Australian Bureau of Statistics did their own research in 1997 which revealed that 88% of children live with their birth mother. 95.9% of 0-4 year olds, 89.2% of 5-11 year olds, and 81.8% of 12-17 year olds lived with their birth mother after divorce.
Misconceptions about child custody laws in Australia
There is a common misconception in Australia that after separation or divorce, the courts favour the mother when deciding child custody arrangements.
The Sydney Morning Herald published a story in 2019 where retired Federal Circuit Court judge Robyn Sexton was quoted. She said that only 3% of fathers lose the right to see their child and that family violence is normally a factor in cases where fathers do lose access.
There is also a misconception that women are favoured in divorce proceedings. This is not the case as Australia’s Family Law Act is gender neutral.
Best interests of the child
When making a Parenting Order the Court’s primary considerations are the best interests of the child in accordance with the Family Law Act 1975 (Cth).
The Court holds the presumption that it is in the child’s best interests to have a meaningful relationship with both of their parents.
The Court must however give greater weight to the need to protect the child than the presumption of equal shared parental responsibility. If the child has been exposed, or experienced domestic violence then sole custody is likely to be awarded to the other parent.
Even when both parents have equal shared parental responsibility, it is rare that children will spend equal time with both their parents. It may be in the child’s best interest that they live with one parent the majority of the time due to practical difficulty such as getting to school during the week or one of the parent’s work commitments. The child may also have special emotional or intellectual needs.
Parenting during COVID-19
Women’s Safety NSW published a report in 2020, Child Contact, Shared Care and Family Law in the Context of Domestic and Family Violence and COVID-19. Some of the key findings were:
- 76.8% of those surveyed said an increased number of their clients were experiencing issues related to child contact, shared care and other family law matters.
- 67.9% of survey respondents had dealt with complex matters including threats or domestic violence, and that they were not sure of how to communicate with the father of their children due to “no contact” conditions on AVOs.
- 74.4% of women agreed to child contact with a violent parent due to the courts operating on a limited capacity or not having other support.
- 58.1% had difficulty in accessing the Family Law Court.
- 96.4% of respondents thought that children should be included as protected persons on an ADVO regardless of whether or not they were previously abused.
- 77.3% were concerned that safe places to handover children were no longer open, leading to informal handover arrangements that compromised their personal safety and put them at a greater risk of violence.
Unified Lawyers family lawyers can give you legal advice on ADVOs and other AVOs. We are available on 1300 667 461, from Monday to Saturday.
Factors the court considers in Parenting Orders
When deciding who the child should live with, the Australian Law Reform Commission website says that Courts will consider:
- the child’s preference
- the nature of the relationship with each of their parents and other people (who they may come into contact with)
- how changing the child’s circumstances would affect them
- how easy it is for the child to have contact with a parent and if they would incur any difficulty or costs to maintain a close relationship with both parents
- the ability of each parent to meet the needs of the child
- the need to protect the child from family violence, child abuse or other behaviour that may cause them physical or psychological harm. If the child has had exposure to child abuse the Court may be more likely to make a Sole Parenting Order.
- the attitude the parents hold regarding their parenting responsibilities
- the lifestyle of the parents and their children
- whether the decision will lead to further Court proceedings in relation to the child
- the benefits of having a meaningful relationship with both of the child’s parents
- the maturity and background of the children and of each parent
- any other circumstances that the Court thinks are relevant.
Financial responsibility for children
If you have parental responsibility for your child, then you are financially responsible for your children regardless of which parent has most of the care.
You can either make your own arrangements with the child’s other parent yourself, or you can ask the Court for a child support assessment. A child support assessment will calculate how much child support needs to be paid.
Australia’s Family Law Act 1975 is gender neutral. It states that children have a right to a meaningful relationship with both their parents irrespective of gender. That means both parents will be allowed to spend time with their child.
You can still be involved in decisions related to child’s life even though they may not live with you the majority of the time. This means that you can still make long-term decisions affecting the child. Major long-term issues include:
- your child’s education;
- your child’s health;
- your child’s name;
- your child’s religious and cultural upbringing
- changes to your child’s living situation that would make it harder for your child to spend time with the other parent.
Major long-term issues are not the same as everyday decisions, which include things like what clothes they will wear, or what they’ll eat for breakfast.
Your child’s wellbeing
Divorce proceedings can be just hard on children as they are on the divorcing parents. The Courts try to protect children’s wellbeing by leaving them out of the proceedings. It is important to consider your child’s wellbeing after a relationship has ended.
We understand it can be difficult when you’re dealing with an ex-partner. We can help you with parenting agreements so that your children’s wellbeing is not affected.
Parenting agreements after separation
Most separated parents make a parenting agreement with their former spouse without involving solicitors or courts. Only 3% of separated couples go to Court. Normally they go to Court after making a Limited Parenting Agreement. When the matter is heard by the Family Court of Australia, the agreement becomes a Binding Parenting Agreement. That means it is binding and can be held up in law.
Case study #1
In the case of Banning and Wylie in 2009, a child spent a third of the time with their father. The father wanted to spend equal time with his child when they started school. The mother contested the Court application saying that it was not in the child’s best interests because of the father’s work commitments.
The Court ruled that the parents should gradually move to equal care. This case highlights that the Family Court of Australia is not biased. The Court always consider the child’s best interests when making decisions.
This case proves that fathers’ rights are protected in Court.
Case study #2
The Courts consider previous Parenting Orders when making a judgement about parental responsibility.
In a case in 2014, between Mr and Ms Best, the couple had four children aged 15, 13, 9 and 7. The father applied for sole parental responsibility. Ms Best challenged the appeal. The Court referred to previous Parenting Orders made in 2012 and 2013 when reaching a decision.
The mother submitted previous ADVO applications. The father had addiction issues and had been verbally abusive to the mother.
The judge ruled in favour of the mother. In their judgement they stated that it would not be in the children’s best interests to have contact with the father until they turned 18.
This was a rare case where the judge made a no contact Parenting Order.
Case study #3
In 2009 in the case of Biss, the father had been accused by the mother of sexually abusing one of the children. Despite the allegations the Judge ruled that the parents should share equal parental responsibility, and equal time with the children.
They made a Parenting Order that it was in the children’s best interests to spend equal time with both parents.
Case study #4
In the case of Maluka & Maluka in 2009, a mother had left a relationship after having two children. Before leaving the relationship she had experienced physical violence, death threats, stalking and property damage from the father. The father was also violent with the children.
The Family Court prioritised the case because of the danger the father posed to the mother and the children.
The Court made an Order for Sole Parental Responsibility and the father was not permitted to contact the children at all.
This shows the Courts consider what it is in the best interests of the child.
Conclusion (what the stats say)
Research by the Australian Institute of Family Studies suggests that children are more likely to live with their mothers. This does not however mean that Courts deliberately favour mothers.
Fathers should not be deterred from applying for custody. In 2006, the Howard Government passed the gender-neutral Family Law Amendment (Shared Responsibility) Act 2006, which introduced the presumption of equal shared parental responsibility. When making Parenting Orders the Family Court is required to make Parenting Orders with a presumption that giving equal shared parental responsibility is in the child’s best interests.
In a legal sense, gender-neutral legislation means that the Court does not look at your gender when making Parenting Orders. They look at what will be in the child’s best interests.
Related links and resources to assist you
- Family Court of Australia
- Federal Circuit Court of Australia
- Family Law Act 1975 (Cth)
- Family Law Amendment (Shared Parental Responsibility) Act 2006
- Australian Institute of Family Studies
- Australian Law Reform Commission
- Women’s Safety NSW
Unified Lawyers are compassionate and dedicated to helping you achieve success in your Court case. If you would like to apply for sole custody or shared custody we can help you throughout the process. Our child custody lawyers have managed many cases relating to the custody of children and are Here For You. We will gather all the facts from you so that we can prepare your case to give you the best chance of success.
We are available on 1300 667 461 and treat all matters with absolute confidentiality.