Child Custody & Recovery

Understanding Child Custody in Australia

When parents of a child under the age of 18 separate, they both retain responsibility for the child's welfare and financial support, irrespective of their relationship status.

Australian family law encourages separated parents to consult each other about major long-term issues in relation to their child and make decisions in the best interests of their child. The Family Law Act is gender-neutral, and does not make assumptions about parenting roles, or how much time a child should spend with each parent.

At Invictus Legal, we understand that navigating child custody matters can be emotionally challenging. Our experienced family lawyers provide compassionate guidance through this complex process, ensuring your child's best interests remain at the forefront of all decisions.

Child Custody Laws in Australia

Child custody law in Australia falls under the Family Law Act 1975. The Act clearly outlines that child custody considers the child's best interests and that parents have responsibilities to their child, not rights. As a parent, you must prioritise your child's interests over your own.

Key Aspects of Australian Child Custody Law:

Parental Responsibility

Parental responsibility means all of the duties, powers, responsibilities and authority that parents have in relation to their children. Each parent ordinarily has parental responsibility for the child regardless of whether they are married, in a de facto relationship, never in a relationship or otherwise. This means that both parents can independently make decisions about the child.

When the parents of a child under the age of 18 separate, they both continue to share parental responsibility for the child in this way.

Best Interests of the Child

Australian law sets out a list of factors that describe how a court will assess what is in the 'best interests of the child'. These factors include:

• The safety of the child and people who care for the child (including any history of family violence and family violence orders)

• The child's views

• The developmental, psychological, emotional and cultural needs of the child

• The capacity of each person who will be responsible for the child to provide for the child's developmental, psychological, emotional and cultural needs

• The benefit to the child of having a relationship with their parents, and other people who are significant to them

• Anything else that is relevant to the particular circumstances of the child

For Aboriginal and Torres Strait Islander children, their right to enjoy their culture must also be considered.

Equal Shared Parental Responsibility vs. Equal Time

Child custody is referred to by law as 'parental responsibility'. The statutory presumption is that both parents will share equal responsibility in caring for the child. This means both parents have a role in making decisions that impact the long-term situation for the child, such as where they will live, what school they attend, religious upbringing and major medical decisions.

Under Australian Law, 'access' to your child is referred to as to 'spend time' with your child. Shared parental responsibility differs from equal time spent. This means that while you may share the responsibility of child support 50/50, this doesn't automatically mean you share the time spent with your child 50/50.

There is no rule that children must spend equal or "50:50" time with each parent.

How Invictus Legal Can Help with Child Custody Matters

Our experienced family lawyers at Invictus Legal can assist you with:

Parenting Arrangements

In most cases, it's best that both parents discuss their child's individual needs, and come to their own agreement about where a child will live, and how they will spend time with their parents. There are all sorts of different ways that separated families can make sure that their children have ongoing relationships with both of their parents.

Our family lawyers can help you:

• Negotiate fair and practical parenting arrangements

• Draft parenting plans that reflect your child's best interests

• Apply for consent orders to formalize your agreements

• Represent you in family dispute resolution or mediation

• Advocate for you in court proceedings if necessary
  

Child Recovery Orders

A recovery order is an order of the Court that can require a child be returned to a:

• Parent of the child

• Person who has a parenting order that states the child lives with, spends time with or communicates with that person, or

• Person who has parental responsibility for the child.

A recovery order can authorise or direct a person or persons, such as police officers, to take appropriate action to find, recover and deliver a child to one of the people listed above.

When to Seek a Recovery Order

You may need a recovery order if:

• Your child has been taken without your consent

• Your child has not been returned as required by a parenting order

• You have concerns for your child's safety and welfare

You can apply for a recovery order if you are a:

• Person who the child lives with, spends time with or communicates with as stated in a parenting order

• Person who has parental responsibility for the child in a parenting order

• Grandparent of the child, or

• Person concerned with the care, welfare and development of the child.
  

International Child Recovery

If a child has been taken from Australia without your consent, or has not been returned to Australia, special procedures apply. Australia has an agreement with some countries to return abducted children to their country of usual residence. The agreement is called the Convention on the Civil Aspects of International Child Abduction (the Hague Convention).

At Invictus Legal, we have experience handling international child recovery matters and can:

• Advise you on urgent steps to take

• Help you work with the Commonwealth Attorney-General's Department

• Guide you through the complex international legal processes
  

Why Choose Invictus Legal for Your Child Custody Matter

Our family law team at Invictus Legal offers:

• Expert knowledge in all aspects of child custody law

• A compassionate approach to sensitive family matters

• Clear, practical advice tailored to your unique situation

• Strong advocacy focused on achieving the best outcome for your child

• Extensive experience with complex and high-conflict cases
  

Frequently Asked Questions About Child Custody

Is child custody usually split 50/50?

Under Australian Family Law, every parent is responsible for their child's wellbeing and financial support. This applies in all situations, regardless of whether the parents are married, in a relationship, separated, never in a relationship, or otherwise.

This allows each parent to decide about their child, together or individually. The Family Law Act 1975 presumes that custody, meaning responsibility for your child's welfare and financial support, is split equally between both parents.

This presumption only applies if this is in the child's best interest. That means that if the court finds it is in the child's best interest that one parent makes these decisions only, custody would likely not be split 50/50.

How are financial costs distributed in child custody arrangements?

Regardless of who has custody of a child, both parents have a financial responsibility to support the wellbeing and future of their child. So when one parent is granted full custody, the other parent is still required to support their child financially.

Both parents also have a duty to support the child financially after separation, regardless of who the child lives with. Parents can manage this between themselves or apply for a child support assessment.

Can custody arrangements be changed?

If you have made arrangements with your ex-partner outside of the court, you can change them through negotiation. It's always advisable to seek legal advice even if you have an amicable relationship with your ex-partner, especially if you need mediation or assistance negotiating new arrangements.

If you have a court order, you must satisfy the court that there has been a significant change in circumstances.

Contact Invictus Legal For Expert Child Custody Advice

Navigating child custody matters requires experienced legal guidance. At Invictus Legal, we're committed to helping you achieve arrangements that protect your child's best interests while respecting your parental rights.

Contact our child custody experts today for a confidential consultation to discuss your specific situation and how we can assist you.

Phone: (02) 8553 0500

Email: info@invictuslegal.com.au

This information is general in nature and should not be relied upon as legal advice. Each case is unique and requires specific legal advice tailored to your situation.