Child Custody Battles & Parenting Disputes
We have compiled the most important information for parents, grandparents or other caregivers in relation to parenting disputes and custody battles. We answer some of the most common questions we hear when:
- People are preparing for Mediation (a dispute resolution method) and wish to be prepared if they don’t reach an agreement
- A parenting mediation has failed and an agreement was not reached
- People are already in a battle over the custody of children; or
- They are worried and anticipate a court battle ahead of them
If that sounds like you, then you are in the right place. Below we explore:
- The types of disputes relating to children and parenting
- How custody battles work (and the processes involved)
- The time and costs associated with parenting and child related disputes
- What can be used against you in a custody battle
- International custody disputes;
…And the question most people ask in one way or another…
- How do you win a custody battle?
We answer this last question first as it will provide a great deal of insight for you to understand how the law works in Australia in relation to children and how time with parents (or other caregivers) is determined.
Types of custody battles
There are many issues that parents and grandparents might classify as a parenting dispute or custody battle. Here are some of them:
- Who the children will live with
- How time will be shared between parents or caregivers (or not)
- One parent not keeping to the agreement about financial support of the children or shared care arrangements
- Concerns about a child/ren’s safety while in the care of a parent or other caregiver
- Health, medical, education, religion and other life affecting decisions relating to a child
- Relocating with a child (locally, interstate or overseas)
- Concerns about international travel
- Requesting a change to Parenting Orders; or
- Appealing existing Court Orders.
While this is not an exhaustive list, if your concerns relate to the care and wellbeing of your children or grandchildren, the actions you take must be made with up to date legal advice.
What happens in custody battles & parenting disputes?
In family law, there is something called Pre-Action procedures. That is, steps that people must take before their dispute can go before a Court. This is as a result of the changes in 2021 that led to the two Family Law Courts merging into one, and the processes refined. This included making mediation compulsory to help people in dispute about parenting or finances to get to a resolution without the need for Court.
The Court has a screening process (called the Lighthouse Project) which allocates matters to lists based on the resources needed.
Where there are matters of an urgent and serious nature, a matter may be added to either:
- The Magellan List – specific to complex and serious allegations of physical or sexual child abuse; or
- The Evatt List – specific to high risk family violence, child abuse or other serious safety concerns such as parental alienation.
The Judicial Registrars and Judges who do that work have had extra training to be able to manage issues like these and ensure the children and families are looked after in the Court process.
Where there are Parenting Orders in place, and they are not being followed, then the matter will be allocated to the National Contravention List for a hearing.
There are other lists in addition to these and your family lawyer will advise what is the best course of action based on the circumstances.
Time and costs associated with parenting disputes
How long can a custody battle take?
While the changes to the law and the Court processes have reduced the number of matters in line to be decided on by a Judge (final hearing), a parenting dispute or custody battle can often get to an outcome or resolution faster with the help of a family lawyer to guide your next steps.
Where previously some families would be waiting five years to get to a final hearing, the Court is achieving that in less than a year (accurate at the date of publishing).
How much does a custody battle cost in Australia?
Parenting disputes and custody battles can vary in cost based on the complexity of the matter and the course of action required. What is clear though is that early legal advice is an investment in making decisions right the first time, in alignment with the law.
What adds to costs is when actions and decisions cannot easily be undone, if at all.
What can be used against you in a custody battle?
Can I record my own evidence?
We are seeing an increasing amount of people recording audio and/or video to provide evidence. Generally speaking, it is illegal in both ACT and NSW to record audio or video without the other party’s consent. There are some instances where secret recordings may be allowed to be used in court but the line is a fine one.
Where a recording is provided but it is considered inadmissible or illegal, can reflect poorly on the person responsible, and ultimately the outcome of the dispute. Always seek legal advice from a family lawyer first, as penalties for unlawful recordings can include imprisonment and fines of over $10,000.
Can medical records be used in a custody battle?
Your medical records can be subpoenaed (commanded by the Court) if relevant to your proceedings. In some circumstances you can successfully object to the production of documents.
Issues of drug use and mental health are relevant only insofar as a parents capacity to care for the children.
Can anything else be used against me?
If for example a parent has a significant mental health condition, is aware of it and doesn’t engage in the treatment or medication recommended by their doctor, the Court will take this into consideration in relation to the best interests of the children.
That being said, anything you think could be used against you should be shared with your family lawyer. While we know that people can be fearful about disclosing personal and sensitive information like this for fear of it working against them, know that transparency is required and the outcome that may be feared, may not transpire.
What is more problematic is when this information is not disclosed, only for it to come to light later on or disclosed by the other party. It is always best to be the provider of this information, not to hide it. If you ever end up in Court, it will come out in the cross-examination and is likely to have a significantly negative impact for you.
Disclosure requirements
It is a legal requirement for parents to provide a “full and frank disclosure” of any information relevant to the care, safety and wellbeing of the children.
This includes information in relation to your children such as school report cards, medical and mental health assessments etc.
This also includes your own health and capacity to effectively care for your children. You must also disclose any prior or upcoming matters relating to abuse, family violence or intervention Orders.
If you do not provide adequate information, only for it to come to light later, the consequences can be significant. Any Orders may be set aside and the whole process needs to start over. It positions the person who failed to disclose the information in a far less favourable position as the Court will be aware of the non-disclosure and the outcome is often worse than if this information had been provided from the very start.
Issues of Insight and Issues of Attitude
Information provided by either party may be considered issues of insight or issues of attitude. These can have major consequences when the Court is considering what Orders to make that align with the best interests of the children.
An issue of insight may be a lack of recognition in how one person’s actions contribute to conflict or distress to a child or in the family setting. It could be in relation to communication, drug use, mental health related issues or activities they participate in.
An issue of attitude is when a parent’s attitude toward the other is unreasonably poor. If the Court cannot be confident that the parent will facilitate the relationship between children and the other parent and ensure the Parenting Orders will be complied with, that will contribute to the decision of the Court.
Core to this is both parents’ ability to prioritise the needs of the children over all else.
Who does the Court favour?
To get some idea of what is ahead of them, many people ask, in one way or another, “do mothers usually win custody battles?”
There exists a view that being a woman is an easier path to walk than a man in parenting disputes. It is important to know that nowhere in the Family Law Act is there any reference to somebody’s gender or sexuality as a consideration when contemplating Orders that are in the best interests of children.
The way in which the law works now (after changes in 2023), is that the focus is on assessing the best interests of each child on a case by case basis by considering the evidence and what each individual child’s needs are.
Tips and advice about custody battles & parenting disputes
If you have friends or family members who have been in a similar situation before, it is important to know that what they experienced and how their parenting disputes transpired are just that…specific to them, their children and their circumstances, in conjunction with the law at that moment in time.
Making decisions based on others’ experience, or what you read online, is a fast track to running into problems. We see similar matters with similar features but never have two been the same.
The law has changed, with more changes coming into effect soon, and it will continue to change. And, given what is at stake here, you wouldn’t want to approach in any way that is less than ideal.
Related:
CoParent, Father or Mother Not Complying With Court Orders or Parenting Plan?
