Understanding Child Custody in South Australia

Navigating child custody arrangements can be daunting for parents facing separation or divorce. A common question our clients ask us is, how does child custody work in South Australia?   This blog post will focus on Section 60CA and Section 60CC of the Family Law Act 1975 and advise you on your pathways both inside and outside of Court.

 

How Does Child Custody Work in South Australia?

Under Australian law, child custody at law, known as parenting arrangements, is governed by the Family Law Act 1975.

The Court’s paramount concern is to act in the best interests of the child under Section 60CA of the Family Law Act 1975.

Section 60CC then sets out the specific criteria the Court examines when determining what constitutes a child’s best interests including:

  • the safety of the child (section 60CC(2)(a);
  • the views of the child (where possible dependent on their age, maturity and understanding) (section 60CC(2)(b);
  • the needs of the child (including development, psychological, emotional and cultural needs) (section 60CC(2)(c);
  • the capacity of each parent or person seeking parental responsibility, to provide for the abovementioned needs (section 60CC(2)(d); and
  • the relationship between the child and the parent or other significant people (section 60CC(2)(e).

 

Pathways for Reaching Parenting Arrangements

Parents in South Australia have various options available to them when considering parenting arrangements:

Out-of-Court:

  • Family Mediation: A collaborative and less confrontational process where parties will work with a mediator to reach an agreed parenting arrangement.
  • Parenting Plans: Informal, flexible written agreements between parents about the care arrangements of their child. It is important to note these informal parenting plans are not legally binding on either parent.

You will more than likely find that without the use of the Court, the parenting arrangement process is quicker, more cost-effective, and in general better for preserving positive relationships amongst the parties involved.

Federal Circuit and Family Court of Australia (“Family Court”):

  • Consent Orders: If an agreement is reached outside of court, you can make the agreement legally binding by applying for consent orders from the Family Court.
  • Litigation: If an agreement cannot be reached, either parent may seek Court orders, where a judge will determine interim and final parenting arrangements by considering the best interests of the child as outlined above. This process can be expensive and time consuming and unfortunately, the parties will often feel as though they have not ‘won’.

 

Final Points

Whether negotiating amongst yourselves without the need for legal intervention, or if you find yourself as a party in litigation, by having a clear understanding of Section 60CA and Section 60CC will allow you to advocate for your child’s welfare because you, as well as the Court, are concerned for your child’s best interests.

If you are wondering, how does child custody work in South Australia, our experienced family lawyers can provide you with practical advice, assist you throughout the custody process and will advocate for the best outcome for your family.