After marriage, one spouse may remain at home for a long period to care for the children, taking responsibility for their schooling, medical appointments and extracurricular activities, while the other spouse is mainly responsible for the family’s income.
If the marriage also involves alcohol misuse, gambling, verbal abuse or even family violence, the higher-income spouse may sometimes pressure the other when they are considering separation by saying things such as “You don’t have a job”, “The house is mine” or “If we go to court, the children will definitely live with me”.
This leaves many people who have long carried the family’s caring responsibilities but currently have no income worried: Does having no job mean they are unable to care for their children? If the other party earns more, is it easier for that party to have the children live with them?
The answer is no.
Having no job does not mean being unable to care for a child; nor does the other party’s higher income mean a court will necessarily arrange for the child to live primarily with that party. When Australian courts determine parenting arrangements, the central question is which arrangement is in the best interests of the child.
The Court Does Not Decide Who “Owns” the Child
“Custody” is a common expression in everyday life, but Australian family law actually deals with the child’s overall parenting arrangements. These include whom the child primarily lives with, how the child spends time with the other parent, and how major long-term matters such as education and medical care are decided.
A court does not simply “award” a child to the father or mother, and there is no rule that separated parents must each care for the child for half the time.
Since 6 May 2024, the former presumption of “equal shared parental responsibility” under Australian family law has been abolished. A court will not begin with a default assumption of equal time simply because both parties are parents. It will assess the family’s actual circumstances to determine which arrangement is in the child’s best interests.
Why Does Having No Income Not Mean Lacking the Ability to Care?
A court will consider whether the child can have stable housing and a stable living environment, but assessing a parent’s ability to care is not a simple comparison of salaries.
If one spouse has been the child’s primary carer for the past several years and understands the child’s routines, school arrangements, health and emotional needs, these are practical circumstances the court will consider. Providing full-time care for a child over a long period is itself a genuine contribution to the family and does not lose its significance simply because it generates no salary.
The court will make an overall assessment of who has actually provided the child’s daily care in the past, the living environment each party can provide after separation, the child’s emotional and developmental needs, and the possible effects of changing the child’s home, school or primary carer.
Having no job does not mean the court will necessarily arrange for the child to live with that parent. The court will still consider housing, the care plan and family support after separation. However, temporarily having no income and being unable to care for a child are two entirely different things.
Likewise, a higher income or ownership of property does not make one party naturally better suited to care for a child. If that party has rarely participated in daily care or their lifestyle poses a safety risk to the child, an income advantage cannot displace those factors.
How Do Alcohol Misuse, Gambling or Family Violence Affect Parenting Arrangements?
The court is not concerned with whether one spouse is a “bad person”, but with whether the relevant conduct has affected the child or the child’s carer, or may create a future risk.
For example, if one party frequently loses emotional control after drinking, drives after drinking while transporting the child, or cannot care for the child properly, alcohol misuse may directly affect the parenting arrangements.
If gambling results in substantial debt or the diversion of money needed for household expenses, thereby affecting the child’s housing and basic needs, the court will also consider those practical consequences.
If one spouse has long been subjected to assault, threats, verbal abuse or control by the other, the fact that the violence was not directed at the child does not make it irrelevant to the child’s arrangements. The child may witness the violence, and threats to the primary carer’s safety may also affect the child’s future living environment.
The Family Law Act 1975 requires a court to consider which arrangements can protect the safety of the child and the child’s carer, including protection from family violence, abuse, neglect and other harm. Past family violence and any related family violence protection order may also be factors the court must consider.
Does the Existence of Risk Mean a Parent Cannot See the Child Again?
Not necessarily.
The court will determine, according to the level of risk, which arrangement can protect the child and the carer while maintaining an important parent–child relationship where it is safe and practicable to do so.
Depending on the circumstances, the court may arrange for the child to live primarily with one party and spend time with the other at fixed times. It may instead require contact to be supervised by a relative or professional organisation, require handovers in a public place, or impose conditions on alcohol and drug use while the parent spends time with the child.
Only where the risk is very serious and cannot be effectively managed through other conditions may the court further restrict or even temporarily suspend one party’s contact with the child.
What If You Want to Leave With the Child but Fear Being Accused of “Taking” Them?
If one spouse or the child is in immediate danger, personal safety must be considered first.
Leaving the shared home does not mean automatically giving up the child. Nor does having the home registered in the other party’s name automatically remove the right to seek parenting arrangements.
However, if there is no immediate danger, it is not advisable to suddenly hide the child, take the child to another state without agreement, or take the child directly out of Australia. These actions may trigger urgent court proceedings.
When preparing to separate, a person can preserve important material relating to the child’s daily care, family violence, alcohol misuse, gambling, threats or financial control. What matters is not the volume of evidence but whether it shows when and how often the conduct occurred and the practical effect it had on the child and the family.
Parenting disputes generally must go through Family Dispute Resolution before court proceedings begin. However, where family violence, a risk to a child’s safety or another emergency is involved, direct negotiation may not be appropriate and an exemption from the relevant dispute-resolution requirement may be available.
Having No Job Does Not Mean Having No Financial Support After Separation
Which parent a child lives with is not determined by which spouse earns more.
Financial matters after separation may separately involve child support, spousal maintenance and property settlement.
Accordingly, even if one spouse currently has no job, or the other controls major assets such as the family accounts and home, this does not mean the first spouse will necessarily have no source of financial support after separation. Still less does it mean they must give up reasonable parenting arrangements as a result.
If the other party has threatened to take the child or cut off financial support, or if family violence is escalating, it may not be necessary to wait until a person has found a job, saved enough money or collected “perfect evidence” before taking action.
No Income Does Not Mean No Ability to Care for a Child
An Australian court will not automatically arrange for a child to live primarily with one spouse merely because that spouse earns more or the home is registered in their name. Likewise, it will not automatically decide in favour of the other spouse merely because that person has cared for the child at home over a long period.
What truly matters is who has actually cared for the child in the past, the living environment each party can provide in future, and which arrangement can best protect the safety of the child and the carer while serving the child’s best interests.
If a marriage involves family violence, alcohol misuse, gambling, financial control and parenting arrangements, NS Legal’s family lawyers can assess the parenting arrangements, family-violence risks and legal issues arising after separation in light of the family’s actual circumstances. They can help a party protect the child while gaining a clearer understanding of their rights and next steps.
FAQ
Will the Court Still Consider Family Violence If It Was Never Reported to Police and No Protection Order Was Sought?
Yes. The absence of a police report or family violence protection order does not mean the court will disregard the circumstances. The court can consider the parties’ accounts, chat records, medical records and other evidence to determine whether the conduct occurred and whether a risk remains.
Can Violence Against a Spouse Affect Parenting Arrangements If the Other Party Has Never Hit the Child?
It may. The court considers not only the child’s safety but also the safety of the person caring for the child. A child witnessing family violence, or a primary carer being unable to provide stable care because of the violence, may affect the parenting arrangements.
If I Am Temporarily Out of Work and Can Only Stay With Relatives or Friends, Will My Living Situation Be Considered Unstable?
Not necessarily. The court will not compare only the parties’ income and property. It will consider whether the accommodation is safe and stable, whether the child’s daily life can be maintained and whether the future care plan is realistic and workable.
Can I Apply for Parenting Arrangements Before the Divorce Is Final?
Yes. A person does not need to wait until the divorce is final before applying for parenting orders. If the spouses cannot agree on arrangements for the child after separation, the relevant parenting issues can be addressed according to the circumstances.
