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What is the meaning of “child custody” in Australia and what are parenting orders?

You cannot apply for “child custody” in Australia.

The Parliament has removed “custody” from the legislation.

Supporters argued the word “custody” implied ownership and they wanted to focus attention on the interests of the children. 

The current laws refer to “parenting orders” and not to “custody”.

Importantly, you should never say to a family court judge that you want “custody”.

People still erroneously use the word “custody.”

Google searches for custody-related keywords still far exceed searches for parenting orders.

It seems the word “custody” is here to stay.

If you want more information about child custody, sole custody or parenting orders in Perth, Australia, please feel free to send our child custody lawyers your question by e-mail.  Or you can telephone for a short free telephone consultation. Want to know more about our experience in child custody, sole custody or parenting orders, then telephone us or  please review our Testimonials Page. We have acted in parenting cases that have been published online.

What are “parenting orders” in Australia?

Parenting orders have replaced guardianship, custody, care and control of children in Australia.

The Family Courts can make parenting orders for children as follows:

  1. With whom they live?
  2. What time they spend with another person or other persons?
  3. Who should have parental responsibility?
  4. How and when they communicate with another person or other persons?
  5. What maintenance?
  6. Any other aspect of their care, welfare or development?

Therefore, if you are thinking, “I want sole custody,” then you have to ask yourself, “What parenting orders do I want?” Instead of focusing on child custody, you must think about what parenting orders you want. Some of the questions that you have to think about are:

  1. With whom do you want the children to live?
  2. What time should the children spend with the other party during school term, during school holidays and on special occasions?
  3. Do you want sole parental responsibility or shared equal parental responsibility?

There are many other questions that you should be considering at this point. If you need assistance, please feel free to e-mail or telephone our friendly team.

If you are thinking about parenting orders more than likely you should take advice about property and binding financial agreements. You may need advice about spousal maintenance and child support.

What are examples of parenting orders or child custody orders?

The legislation refers to parenting orders and not to child custody orders.

Below are examples of parenting orders that the Family Courts will make:

  1. The parties have equal shared parental responsibility for the children.
  2. The children live with the wife/mother/husband/father.
  3. The children spend time with the wife/mother/husband/father during school term each alternate weekend from after school on Friday to before school on Monday.
  4. The children spend time with the wife/mother/husband/father from 2:00 pm on Christmas Day to 5:00 pm on Boxing Day.

The Family Court of Western Australia has parenting orders kits on its website for Applicants and Respondents.

Well drafted parenting orders will be up to 3 to 5 pages long.

Good parenting orders should clarify where the children will be living and spending time on any given day of the year.

Short parenting orders that say that the children shall live with or spend time with the parties “as agreed” are flexible. But they are not helpful if the parties can no longer reach an agreement.

A good set of parenting orders should also deal with health, education, travel and other parenting matters that normally arise.

We strongly recommend that parties obtain advice from an experienced family lawyer before they complete any parenting orders. You can e-mail, text, FB message or telephone our team at any time. You should get advice about your family law rights.

What are the child custody laws in Australia?

In Australia, the law does not refer to “child custody”.

The Family Courts make parenting orders. Not child custody orders.

Parenting orders deal with the allocation of parental powers and responsibilities.

The applicable law is set out in Part VII of the Family Law Act 1975 (Cth), in Part 5 of the Family Court Act 1997 (WA) and in the supplementary acts and regulations.

When making a parenting orders the Family Courts regard the best interests of children as the paramount consideration.

The legislation sets out the objects, principles, definitions and pathways to be applied by the Family Courts in determining the best interests of children.

There are no parenting arrangements set out in the legislation. The legislation does not say that children must live with the mother and spend time with the father or vice versa. The outcome of each case will be different. The Family Courts must decide each case on their own facts. That is why it is important to obtain advice from an experienced family lawyer. Not sure how the law affects you, then you can text, e-mail, message or telephone our team.

What are the objects of the family courts when making parenting orders?

In making parenting orders the objects of the Family Courts is to promote the best interests of children by:

  1. Ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child.
  2. Protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
  3. Ensuring that children receive adequate and proper parenting to help them achieve their full potential.
  4. Ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

What principles are applied by the family courts when making parenting orders?

The principles applied by the Family Courts are:

  1. Children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together.
  2. Children have a right to spend time on a regular basis with, and communicate on a regular basis with, both parents and other people significant to their care, welfare and development (such as grandparents and other relatives).
  3. Parents jointly share duties and responsibilities concerning the care, welfare and development of their children.
  4. Parents should agree about the future parenting of their children.
  5. Children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

What parenting orders or custody arrangements are in the best interests of the child?

The law does not have any preferred parenting orders.

The legislation does not publish specific parenting arrangements, because every case is different.

The Family Courts must decide each case on their own facts. The parenting orders must be in the best interests of the children.

To decide what is in children’s best interests, the Family Courts must consider the primary and secondary considerations.

The primary considerations are defined as follows:

  1. The children having a meaningful relationship with both parents.
  2. The need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

The secondary considerations include as follows:

  1. The views expressed by the children.
  2. The nature of the relationship with both parents and others.
  3. The willingness of parents to facilitate a close relationship.
  4. The likely effect of changes and separation from parents.
  5. The practical difficulty and expense.
  6. The capacity of parents to provide for the needs, intellectual and emotional.
  7. The attitude of parents to the children and the responsibilities of parenthood.
  8. Whether there has been any family violence.
  9. Any other fact or circumstance that is relevant.

The Family Court must consider a wide array of facts. All relevant facts must be considered. You must not take any action that will harm your case before you obtain legal advice. A single e-mail or communication can negatively impact your case. It is highly recommended that you get advice from an experienced family lawyer without delay. Our team is waiting ready and willing to help. Just send us an e-mail or message. Or make an appointment and come in meet us in person for an no-obligation consultation.

What must the family courts consider when making parenting orders?

The Family Law Acts do not have preference for equal time or any other parenting arrangements.

The legislation does now require the Family Court to consider equal time.

The Family Courts must follow a clearly defined pathway in coming to a decision to make parenting orders as follows:

  1. Does the presumption of equal shared parental responsibility apply? Or does it not apply because there are reasonable grounds to believe there has been abuse or family violence?
  2. Is the presumption rebutted because application of it would not be in the child’s best interests?
  3. If the presumption applies, consider making an order that the children spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the primary or secondary considerations or impracticable?
  4. If equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the primary and secondary considerations or impracticable?
  5. If neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the court that are in the best interests of the child, as a result of consideration of one or more of the primary or secondary considerations?
  6. If the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the primary or secondary consideration?

From the above, the Family Courts are not bound to make any particular type of parenting orders. They are not required to make orders for equal time or that the children live with the mother or with father. There is no mandatory preference or presumption. The presumption applies only to equal shared parental responsibility. Parental responsibility does not relate time, but to the responsibility for making decisions about the long-term issues for the children.

There is no presumption in favour of equal time or in favour of any other parenting arrangements. The Family Court must consider equal time in the appropriate case. It is important that you obtain advice from an experienced family lawyer about the prospects of success of equal time or other parenting orders.

What are mother’s rights of child custody?

In Australia, mothers may apply to the Family Courts to obtain parenting orders.

Mothers do not have a right or preference to have child custody in Australia.

The legislation does not use the terms “child custody” or “custody”.

The Family Law Act do not specify the rights of mothers.

There are only a few references to the word “mother” in the legislation.

The law does not provide mothers with any preference over fathers.

Mothers are included in the terms “parents” in the legislation.

The best interests of the children are the paramount consideration of the Family Courts.

The Family Courts must consider a large range of facts. All relevant facts must be considered. Each case will be different.

If you are a mother, it is important that you take advice from an experienced family lawyer at your earliest opportunity. You should obtain advice about your family law rights.

What are the child custody rights for fathers?

In Australia, fathers may apply to the Family Courts to obtain parenting orders.

Fathers do not have a right or preference to have child custody or equal time in Australia.

There are no prescribed parenting orders for fathers.

The legislation does not use the terms “child custody” or “custody”.

The Family Law Act do not specify the rights of fathers.

The word “father” appears only a few times in the legislation.

The law does not provide fathers with any preference over mothers.

Fathers are included in the term “parents” in the legislation.

The best interests of the children are the paramount consideration of the Family Courts.

The Family Courts must consider all the relevant facts. Each case will be different.

If you are a father, it is important that you take advice from an experienced family lawyer at your earliest opportunity. Telephone us for a no-obligation free telephone consultation.

What is sole custody?  What is sole parental responsibility?

There is come confusion about the term “sole custody”.

Parents regularly say that they want “sole custody”.

The legislation does not use the term “sole custody”.

You cannot apply for an order for “sole custody” in Australia.

The law sets out the parenting orders that you may obtain from the Family Courts.

When someone says that want “sole custody” then you have to ask what they mean:

  1. Are you seeking sole parental responsibility?
  2. Or are you seeking that the children to live with you solely?
  3. Or are you seeking that the children not spent time with the other party?
  4. Or are you seeking that the children spend supervised time with the other party?
  5. Or are you seeking to relocate?
  6. What other parenting orders are you seeking?

If you are thinking that you need “sole custody”, then it is important that you obtain advice from an experienced family lawyer immediately.

How do you get sole custody of your child in Australia?

You cannot obtain orders for “sole custody” in Australia.

Parties can apply for parenting orders from the Family Courts.

Parenting orders may be obtained by any person concerned with the care, welfare and development of the children.

Parenting orders are usually resolved by agreement. If parties reach an agreement, then they should obtain legal advice about whether to prepare a parenting plan or consent orders.

If the parties are unable to reach an agreement, then parties are able attend family dispute resolution to help them reach an agreement.

If the parties have completed family dispute resolution and are still unable to reach an agreement, then they can apply to the Family Courts for parenting orders.

The Family Courts must consider all the relevant facts. All your actions and inactions may be examined by the courts. You must not delay. You must act like a reasonable parent. You must not engage in family violence. You must not send abusive text messages. You must not use drugs. Everything that can be used, may be used by the other party against you. You should get guidance from a family lawyer about what you should and shouldn’t be doing. You do not want to give the other party any ammunition. It is important that you obtain advice from a family lawyer at the earliest opportunity.

Do you have to attend family dispute resolution?

Family dispute resolution is now compulsory in Australia.

If you cannot reach an agreement with the other party, then have to do family dispute resolution.

You must attend family dispute resolution before you commence court proceedings.

You cannot just run off to court if cannot reach an agreement.

Family dispute resolution is a much cheaper, less stressful and more speedy option, than court.

Family dispute resolution may not be appropriate in every case. There are some limited exceptions, when you do not have to family dispute resolution.

You should obtain proper legal advice from an experienced family lawyer before you attend or agree to attend family dispute resolution. Actually you should be getting legal when you separate and even before you attempt to reach an agreement with the other party.

Do you need parenting orders?

If you are thinking about whether you need parenting orders, then you probably need parenting orders. You should get proper legal advice before you make any further decisions. There are a number of benefits to having in place a good set of parenting orders. Most importantly being the reduced stress and worry. Not sure. Then telephone us for a no-obligation telephone consultation. You can make parenting orders can be made by consent orders.

Do you need a child custody lawyer to get custody or parenting orders?

It is not compulsory to have a family or child custody lawyer to obtain parenting orders.

If you have reached an agreement, then you can apply for consent orders without a lawyer.

If you cannot reach an agreement, then you can attend family dispute resolution or apply to the Family Courts sans a family lawyer.

Before you make the assessment about whether to be your own lawyer, we recommended that you have an assessment with an experience child custody lawyer. We offer a no-obligation free telephone consultation or reduced fee initial consultation. It is better to err on the side of caution. You will be better informed before you make the decision to be your own legal eagle.

How much does custody or parenting orders cost?

We are able to provide fixed fee prices for parenting orders. We have family lawyers that charge different hourly rates. The total cost will vary depending on the work to be performed. If you want to know how much it will cost, we have a no-obligation free telephone consultation. In some case you may able to apply for legal aid.

Where can I find more information about custody or parenting orders?

The Family Court of Western Australia, Family Court of Australia and Federal Circuit Courts have more information on their websites.

Visit our Links Page for references to other useful family law information.

It is important to be aware that the information online is generic only. The information is not specific to your case. You can spend hours searching online. General information will not say what is suitable in your case. The only way to know is to obtain advice from an experienced family or custody lawyer. We offer a no-obligation short free telephone consultation or reduced fee initial consultation.

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