Article written by Mark Machaalani, Solicitor Director & Co-founder of Unified Lawyers. Unified Lawyers is a dynamic and innovative law firm established in Sydney, Australia and consists of lawyers that specialise in the areas of family law, probate and contested estates, commercial litigation, property law, building and construction, insurance law, leasing and conveyancing. Read more about Mark and Unified Lawyers here .
Have you split from your spouse and really need to get the kids to a safe place? Sometimes it isn’t possible to maintain a positive relationship with the ex, even where your children are concerned. You need to start a life completely separate from the person who made your lives a study in torment.
One step you may need to take is to obtain an Order of Sole Parental Responsibility from the Family Court to ensure that your kids can move on, too. Before you start filing papers, you should know a little bit about your responsibilities and how the system works.
The facts about Getting Sole Parental Responsibility
Understand Sole Parental Responsibility vs. Shared Parental Responsibility
The Family Court system by definition assumes that you and your ex will have equal shared responsibilities when it comes to your child. In the past, this has been known as custody. Even if the child does not live with both parents, they are both responsible for making decisions about where the child stays, their health, education, religion, and their legal name.
Courts assign Sole parental responsibility when they determine that it is in the best interest of the child to live with only one parent and that parent will make all major decisions for the child’s welfare until they are the age of 18. It does not remove the financial responsibility of providing support for the child from the parent who is no longer part of the Order for Parental Responsibility.
How to Get Sole Parental Responsibility
You must rebut (or change) the court’s presumption that both parents can provide a safe environment for your child to live or visit. The definition of a safe environment includes providing a warm home, food, and clothes, but also maintaining a home free from any abuse caused by the ex-spouse, their visitors, or even a part-time caretaker such as sitters.
In order to accomplish this, you will file for a hearing with the Family Court. During several hearings, they will listen to testimony given by all involved parties. When the court determines that it is best for your child to have only one parent, the Family Court then issues a Parental Order of Sole Parental Responsibility.
Factors Considered Granting Sole Parental Responsibility
When the court reviews a case regarding parental orders, they take many parts of the child’s life into consideration. Before they exclude a parent from the responsibilities of raising their child, they must decide that short-term counseling or support would not help the parent retain some of their responsibilities. The courts may assign an independent children’s lawyer (ICL) to speak to the child and both spouses to get a more objective view of the situation before issuing any orders. They will take into account the:
- Physical and mental safety of the child
- Ability of both parents to make informed, reasonable decisions for their child and agree
- Ability of both parents to spend meaningful time with the child
- Harmful atmosphere created by disagreements between the parents which leave a lingering negative impact on the child
Obstacles to Winning Sole Parental Responsibility
The Family Court functions on the basic concept that a child raised by two parents–even if living separately–will grow into a more stable, happier, and healthier adult. To this end, the courts are far more likely to issue a Shared Parental Responsibility order than a Sole Parental Responsibility order. The courts break down these responsibilities into five major categories:
- Changes to living arrangements (that limit time with one of the parents)
Many times, the court issues shared orders. Here, they assign some of the five major decisions to both parents, but not others. For example, it is possible that you will share their education and religious upbringing, while they assign sole responsibility for the child’s health, name, and living arrangements to one parent. It is uncommon for courts to assign complete sole responsibility simply because one parent is living in a different part of the country. If you are unable to agree on anything, you must prove to a judge that the parents fail to work together for the good of the child even after attending court ordered mediation or counseling to obtain a Sole Responsibility Order.
How a Child Custody Lawyer Can Help
While it is possible to file for divorce without using an attorney, fighting for parental responsibilities is a much more challenging prospect. You might consider contacting divorce lawyers in Sydney who has the experience needed to approach the courts and provide testimony in a manner that can get faster results.
Once you have the legal beagle on your side, don’t hesitate to reach out to the community for emotional support. Other mums are working through this, too.