Parenting Orders specify who a child lives or spends time with or who can be responsible making decisions for a child.
As a family lawyer in Dandenong, with over 20 years experience dealing with the Family Law Act 1975, I help separated parents navigate difficult decisions and work towards child focused outcomes.
I understand that parenting disputes are often the most emotionally charged aspects of separation.
My dedicated team of experienced family lawyers can help guide you every step of the way through this challenging time with compassion, professionalism, and a commitment to achieving the best possible outcome for your children and your family.
My firm believes you should understand the law and have all the information you need before making important decisions.
General information about child custody in Australia
- What Is Custody of Children?
- Child Custody in Australia
- Parental Responsibility in Child Custody
- What Are Parental Plans and Orders
- Best Interest of the Child
- How Does Custody Work in Australia?
- Child Custody Laws in Australia
- What Are Types of Child Custody
- What Are Different Arrangements for Child Custody?
- Visitation Rights for Parents
- What Are Types of Arrangements for Visitations
- When Can a Child Decide Which Parent to Live with?
- Interests of the Child in Court Decisions
- How to Get Full Custody of Child in Victoria?
- How to Get Full Custody of a Baby?
- What are Key Considerations for Full Custody?
- What Are Parenting Orders?
- Child Custody Schedules by Age in Australia
- What Are Parental Responsibilities?
- What Is Dispute Resolution?
- Court Process for Parenting Orders
- Child Custody Laws in Victoria
- Am I Eligible for Legal Aid?
- What Happens in case of Relocation & Travel?
What Is Custody of Children?
General Overview of Child Custody
Child custody refers to the legal and practical arrangements regarding the upbringing of a child after the parents have separated or divorced. In general, custody determines which parent has the legal right and responsibility to make decisions about the child’s life and welfare, including their education, healthcare, and religious upbringing. Custody can also refer to the physical care of the child, deciding which parent the child lives with and how much time they spend with each parent.
Child Custody in Australia
In Australia, child custody is referred to as “parental responsibility” rather than custody. The legal framework is governed by the Family Law Act 1975, and the focus is on ensuring that the child’s best interests are always the primary consideration. Australian law encourages both parents to share responsibility for the child, unless it would not be in the child’s best interests, such as in cases of family violence or abuse.
Parental Responsibility
The concept of parental responsibility in Australia refers to the duties, powers, responsibilities, and authority parents have in relation to their children.
It is presumed that it is in the best interests of the child for both parents to have “equal shared parental responsibility,” which means that both parents are involved in making major long-term decisions for the child. This includes decisions about education, healthcare, and other important aspects of the child’s life.
However, equal shared parental responsibility does not necessarily mean that the child will spend equal time with both parents. The time-sharing arrangement is determined separately, based on what is practical and in the child’s best interests.
The court may order “sole parental responsibility” to one parent if shared responsibility is not appropriate, such as when there is a history of family violence or other risks to the child.
Parenting Plans and Orders
If parents can agree on how to raise their children after separation, they can create a parenting plan, which is a written agreement about parenting arrangements. Parenting plans are not legally binding, but they help clarify each parent’s responsibilities.
If the parents want a legally enforceable arrangement, they can apply for consent orders from the court, which formalize the agreement and make it binding.
When parents cannot agree on parenting arrangements, they may need to apply for parenting orders from the Federal Circuit and Family Court of Australia. Parenting orders can cover issues such as who the child lives with, how much time they spend with each parent, and how decisions about the child will be made.
The court makes these decisions based on the child’s best interests, considering factors like the child’s relationship with each parent, the parents’ capacity to provide for the child, and any risks of harm.
Best Interests of the Child
In Australia, the principle of the “best interests of the child” guides all decisions related to parental responsibility. This includes maintaining a meaningful relationship with both parents, ensuring the child’s safety, and promoting their emotional, psychological, and physical well-being. Courts may also take into account the views of the child, depending on their age and maturity, but this is just one factor among many.
Overall, the Australian system aims to balance the involvement of both parents in the child’s life, provided it is safe and beneficial for the child.
How Does Child Custody Work in Australia?
Child custody in Australia is primarily governed by the Family Law Act 1975, which focuses on the concept of “parental responsibility” rather than “custody.” The law emphasizes that the best interests of the child are the most important factor when determining parenting arrangements after the separation or divorce of the parents.
Australian courts generally encourage both parents to remain involved in the child’s life unless there are serious concerns like family violence or abuse.
Equal Shared Parental Responsibility
The law presumes that it is in the child’s best interests for both parents to have equal shared parental responsibility. This means that both parents share the responsibility for making major decisions about the child’s life, such as education, health, and religious upbringing.
However, this does not automatically mean that the child will spend equal time with both parents. The court considers whether shared time is in the child’s best interests and whether it is practical for the family’s situation, taking into account factors like the parents’ ability to cooperate and geographical distance.
Parenting Orders and Agreements
If parents are able to agree on parenting arrangements, they can formalize this through a parenting plan or by applying for consent orders from the court to make the agreement legally binding.
A parenting plan is a written agreement that outlines how parents will share time with the child, how decisions will be made, and how communication will be managed. However, parenting plans are not legally enforceable unless they are turned into consent orders. Consent orders are legally binding and must be followed by both parents.
If parents cannot agree on arrangements, they may need to attend Family Dispute Resolution (FDR) to attempt to resolve their differences. If FDR is unsuccessful, or if there are issues like domestic violence, a parent can apply for parenting orders from the Federal Circuit and Family Court of Australia.
These orders can determine who the child will live with, how much time they will spend with each parent, and how communication will occur. The court will make these decisions based on the best interests of the child, considering factors like the child’s relationship with each parent, their safety, and their emotional and physical needs.
Sole Parental Responsibility
In cases where shared parental responsibility is not deemed appropriate, such as when there has been family violence, abuse, or neglect, the court may grant one parent sole parental responsibility. This gives that parent the authority to make decisions about the child’s life without the need to consult the other parent.
However, the non-custodial parent may still be granted time with the child, unless the court determines that contact would be harmful to the child’s well-being.
Ongoing Flexibility
Child custody arrangements in Australia are not set in stone. Parenting orders and agreements can be reviewed and modified over time as the child’s needs or circumstances change.
The goal of the family law system is to reduce conflict between parents and ensure that children continue to have meaningful, positive relationships with both parents, as long as it is safe and in the child’s best interests.
Child Custody Laws Australia
Child custody laws in Australia are governed by the Family Law Act 1975, which outlines the legal framework for parenting arrangements following the breakdown of a marriage or de facto relationship.
The key principle of these laws is the “best interests of the child,” meaning that all decisions made by the courts, or agreed upon by parents, must prioritize the child’s well-being above all else.
The term “custody” is no longer used in Australian law; instead, the focus is on “parental responsibility” and “parenting orders,” which allocate the rights and responsibilities of each parent regarding the care, welfare, and development of their children.
In most cases, the court encourages both parents to share responsibility for their children after separation. This is known as “equal shared parental responsibility,” where both parents are expected to jointly make major decisions about the child’s life, such as education, medical care, and religious upbringing.
However, equal shared parental responsibility does not necessarily mean equal time spent with the child. If it is in the child’s best interests, the court may order a different time-sharing arrangement, including sole parental responsibility, where one parent makes the key decisions, usually in cases where there is a history of family violence or abuse.
When determining custody and parenting arrangements, the court considers various factors to ensure the child’s best interests are met. These factors include the child’s relationship with each parent, the capacity of each parent to provide for the child’s emotional, intellectual, and physical needs, and the potential impact of any changes to the child’s current living arrangements.
The court also takes into account the child’s views, depending on their age and maturity, as well as any risks associated with family violence or neglect.
The court generally promotes the idea of children maintaining a meaningful relationship with both parents, provided it is safe and in the child’s best interests. For this reason, shared care arrangements are encouraged where appropriate.
Shared care does not necessarily mean an equal 50/50 split in time; it can include various arrangements, such as alternating weekends, school holidays, and mid-week visits. However, if there is a concern for the child’s safety or well-being, the court may limit or supervise a parent’s time with the child.
In situations where parents can agree on parenting arrangements, they can formalize their agreement through a “parenting plan” or apply to the court for “consent orders” to make the agreement legally binding.
A parenting plan is a written agreement that sets out the parenting arrangements and is not legally enforceable unless it is turned into consent orders through the court. Consent orders provide a legal framework for the agreed-upon arrangements, and both parties are required to comply with them.
If parents cannot reach an agreement, they must attend family dispute resolution (FDR) before applying to the court for a parenting order. If FDR fails or is not appropriate due to circumstances such as family violence, the court may intervene and make a parenting order.
Parenting orders are legally binding and outline the specific arrangements for the child, including where the child will live, how much time they will spend with each parent, and how communication will be managed. Non-compliance with parenting orders can result in legal consequences, including fines or changes to the parenting arrangement.
What Are Types of Child Custody?
Child Custody in Australia can be divided into two main types:
1. Legal Custody
Legal custody Refers to the authority to make major decisions regarding the child’s upbringing, such as decisions about schooling, medical care, and religious instruction. Legal Custody involves the right to make important decisions about your child’s upbringing, including education, healthcare, and religious instruction. I help parents navigate these decisions and work towards mutually agreeable solutions.
2. Physical Custody
Physical custody Refers to the actual physical care of the child, determining which parent the child will live with and for how much time. Physical Custody determines where the child will live. My team assists in establishing and modifying physical custody arrangements that serve the best interests of the child while accommodating the needs and circumstances of both parents.
Different Arrangements for Child Custody
There are also different custody arrangements, such as sole custody, where one parent has exclusive legal and/or physical custody, and joint or shared custody, where both parents share these responsibilities. Courts or legal authorities typically make custody decisions based on the best interests of the child, considering factors like the child’s relationship with each parent, the parents’ ability to provide for the child, and the child’s overall well-being.
1. Sole Custody
In some cases, it may be necessary for one parent to have sole custody. We advocate strongly for our clients in these situations to ensure the safety and well-being of the child.
2. Joint Custody
Joint custody can involve both legal and physical custody, where responsibilities and time are shared between parents. I, as an experienced family lawyer in Dandenong, provide expert guidance in crafting joint custody arrangements that work for both parties.
How Are Visitation Rights Decided?
In Australia, visitation rights (referred to as parenting arrangements or time with a child) are part of the broader child custody process, which is primarily determined by what is in the best interests of the child. This is governed by the Family Law Act 1975.
Key Factors in Deciding Visitation Rights:
1. Best Interests of the Child:
The overriding principle in any custody and visitation decision is the best interests of the child. Courts focus on ensuring the child has a meaningful relationship with both parents while ensuring they are safe from harm.
2. Parental Responsibility:
In Australia, there is a presumption of equal shared parental responsibility. This doesn’t mean equal time with both parents, but rather that both parents should make joint decisions about major long-term issues affecting the child (e.g., education, health).
3. Practical Considerations:
Courts consider practical factors, such as the geographic distance between the parents, the child’s schooling, parents’ work schedules, and the availability of support networks (extended family, friends).
4. Willingness to Co-Parent:
Courts assess each parent’s willingness to encourage the child’s relationship with the other parent. If one parent is seen as attempting to alienate the child from the other parent, this may influence visitation rights.
5. Children’s Wishes:
For older children, the court may take into account their wishes, though this depends on the child’s age and maturity.
6. Family Violence or Risk of Harm:
If there are concerns about family violence, abuse, or any other risks to the child, the court may limit or deny visitation rights to protect the child.
Types of Arrangements for Visitations
Equal Time:
In cases where it is practical and in the child’s best interests, the court may order equal time with both parents.
Substantial and Significant Time:
If equal time isn’t appropriate, one parent may spend substantial and significant time with the child, which could include weekends, holidays, and special occasions.
Supervised Visitation:
If there are concerns about a parent’s ability to care for the child (due to issues like substance abuse or family violence), visitation may be supervised by a third party or in a visitation center.
Mediation and Agreements:
In many cases, parents can reach an agreement through Family Dispute Resolution (FDR), a mandatory step before court, unless exceptions apply (e.g., family violence). If an agreement is reached, it can be formalized by the court as a parenting plan or a consent order.
If parents cannot agree, the matter may go to the Family Court of Australia or the Federal Circuit Court, where a judge will decide based on the best interests of the child.
When Can a Child Decide Which Parent to Live with in Australia?
In Australia, there is no specific age at which a child can decide which parent they want to live with. Instead, the court considers the child’s views as one of many factors in determining parenting arrangements, but these views are weighed according to the child’s age, maturity, and understanding of the situation.
The Family Law Act 1975 does not provide a fixed age for a child to make this decision; rather, the court focuses on the best interests of the child, considering their emotional, physical, and psychological well-being.
The court typically gives more weight to the views of older children who demonstrate sufficient maturity and understanding of their situation. For example, a teenager’s preferences may carry more weight than those of a younger child.
However, even if the child expresses a strong preference to live with one parent, the court will assess whether that preference aligns with their best interests. The court may also appoint an independent children’s lawyer or seek a family consultant’s input to help understand the child’s wishes in the context of the entire family dynamic.
In some cases, children may feel torn between their parents or pressured to choose one over the other. The court is careful to ensure that a child’s expressed views are genuinely their own and not influenced by one parent’s pressure or manipulation.
To protect children from being put in difficult positions, the court generally discourages parents from involving them in custody disputes and instead uses professionals, such as psychologists or family consultants, to assess the child’s perspective.
While a child’s views are important, they are just one factor among many. The court also considers the capacity of each parent to meet the child’s needs, the relationship between the child and each parent, and any history of family violence or abuse.
Ultimately, the court aims to strike a balance between considering the child’s wishes and ensuring that the parenting arrangements will provide a stable, supportive, and safe environment for the child.
As children grow older, their preferences are likely to have increasing influence over the court’s decisions. In many cases, teenagers may have more autonomy in deciding where they wish to live, particularly if their expressed desires are reasonable and do not conflict with their well-being.
However, even for older children, the court retains the final decision-making power and will only approve arrangements that are in the child’s best interests.
Best Interests of the Child
Primary Consideration
The child’s best interests are the paramount consideration in all decisions. This includes ensuring the child’s safety and well-being.
Considerations
Factors include the child’s views (depending on age and maturity), the nature of the child’s relationship with each parent, the willingness of each parent to facilitate a relationship between the child and the other parent, and any history of family violence or abuse.
How to Get Full Custody of Child Victoria
In Victoria, Australia, obtaining full custody of a child is referred to as having “sole parental responsibility,” which grants one parent the legal authority to make major decisions about the child’s life, including education, health care, and living arrangements.
However, the court’s primary consideration is always the “best interests of the child.” To seek full custody, a parent must demonstrate that it is in the child’s best interests for them to have sole parental responsibility, typically in cases where the other parent may pose a risk to the child or is unable to provide a safe and stable environment.
To start the process of seeking full custody, the parent must first attempt family dispute resolution (FDR). This is a mandatory step in most cases before going to court, designed to encourage parents to reach an agreement about parenting arrangements without litigation.
If FDR fails or is deemed inappropriate due to circumstances such as family violence, the parent can apply to the Federal Circuit and Family Court of Australia for parenting orders. These orders will set out the specific arrangements for the child, including whether one parent will have sole or shared responsibility.
In making a decision about full custody, the court will consider various factors, including the child’s relationship with each parent, the ability of each parent to provide for the child’s needs, and any history of family violence or abuse.
If one parent is unable to meet the child’s physical, emotional, or psychological needs, or if contact with the other parent would put the child at risk, the court may grant full custody to the applying parent. The court also takes into account the views of the child, depending on their age and maturity.
It is important to note that even if one parent is granted full custody, the other parent may still be allowed to spend time with the child or maintain communication unless it is proven to be harmful.
The court encourages maintaining a relationship with both parents, where possible, as it is generally believed to be in the child’s best interest. In cases of sole parental responsibility, the non-custodial parent may have supervised visitation or other limited forms of contact if there are concerns about the child’s safety.
To increase the chances of being awarded full custody, it is essential for the parent to present clear evidence supporting their case. This could include documentation of any concerns about the other parent’s ability to care for the child, records of family violence, or evidence that the child’s best interests are better served by living primarily with the applying parent.
Legal advice and representation are recommended when navigating the complexities of family court and custody matters.
How to Get Full Custody of a Baby
To seek full custody of a baby in Australia, you need to apply for sole parental responsibility through the Family Court. Full custody, or sole parental responsibility, means that one parent has the authority to make all major decisions about the child’s life without the involvement of the other parent.
However, it is important to note that the court’s primary consideration is always the best interests of the child, so you must provide sufficient evidence to justify why sole parental responsibility is necessary.
Considerations for Full Custody of the Child
1. Understand the Legal Standard: Best Interests of the Child
In Australia, the court’s priority is always what is in the best interests of the child, even for a baby. The court considers factors such as:
- The child’s need to have a meaningful relationship with both parents.
- The child’s safety and protection from harm, including family violence or abuse.
- The capacity of each parent to meet the child’s needs.
- The child’s relationship with siblings and extended family.
If you are seeking full custody, you must demonstrate that it is in the baby’s best interests to live primarily with you and that the other parent should not have shared parental responsibility, which is generally the presumption.
2. Family Dispute Resolution (FDR)
Before applying for sole parental responsibility, most cases require attending Family Dispute Resolution (FDR). This is a mediation process designed to help parents reach an agreement without going to court. If FDR is unsuccessful or inappropriate due to safety concerns (such as family violence or abuse), you can receive a certificate that allows you to proceed with a court application.
3. Gathering Evidence to Support Your Case
If you are seeking full custody, you will need to provide strong evidence to demonstrate why the other parent should not have equal shared parental responsibility. Some key points you may need to prove include:
- The other parent poses a risk to the baby’s safety (e.g., family violence, abuse, substance abuse).
- The other parent is incapable of caring for the baby or does not contribute meaningfully to the child’s welfare.
- The other parent’s behavior (e.g., neglect, inconsistent caregiving) is not in the baby’s best interests.
This may include documentation like police reports, protective orders, medical records, or witness statements. You may also need to show that you are the more capable and stable parent for providing full-time care for the baby.
4. Applying for Parenting Orders
If FDR does not lead to an agreement, you can apply to the Federal Circuit and Family Court of Australia for a parenting order seeking sole parental responsibility. The court will assess the evidence provided and determine whether full custody is in the best interests of the baby. Parenting orders will specify who the child will live with, how much time they will spend with the other parent (if any), and how decisions regarding the child’s upbringing will be made.
5. Court’s Decision-Making
The court will consider various factors when deciding to award full custody, including:
- The safety and welfare of the child (e.g., if there is a history of family violence).
- Each parent’s ability to care for the child and meet their developmental needs.
- The emotional bond between the child and each parent.
Even if the court grants you full custody (sole parental responsibility), the other parent may still have contact with the child unless it is proven to be unsafe. This could include supervised visits or communication through other means, depending on the circumstances.
6. Sole Parental Responsibility in Extreme Cases
Sole parental responsibility is generally only awarded in cases where one parent can clearly demonstrate that the other parent poses a serious risk to the child or is unable to provide appropriate care. The court prefers to maintain relationships between the child and both parents where it is safe to do so.
It is highly recommended that you seek legal advice before proceeding with an application for full custody. A family lawyer can help you understand your rights and obligations and can guide you through the complex legal process.
What Are Parenting Orders?
Parenting orders in Australia are legally binding decisions made by a court regarding the parenting arrangements for a child after the parents separate or divorce.
These orders can cover various aspects, including who the child will live with, how much time the child will spend with each parent (or other significant people), how parental responsibilities will be shared, and any other issue relating to the child’s welfare, education, and upbringing. Parenting orders are made in the best interests of the child, and failing to comply with them can result in legal consequences.
Types of Orders
These can include who the child lives with, how much time the child spends with each parent, and how parental responsibilities are shared.
Shared Parental Responsibility
The court presumes that it is in the child’s best interests for both parents to have equal shared parental responsibility, unless there is evidence of family violence or child abuse.
Child Custody Schedules by Age Australia
In Australia, child custody schedules, often referred to as parenting arrangements, are designed with the child’s age and developmental needs in mind.
The goal is to ensure that these arrangements are in the best interests of the child, allowing them to maintain strong relationships with both parents while providing stability and security. As children grow, their needs and capacity to handle time away from one parent may change, and custody schedules are often adjusted accordingly.
For infants and toddlers (0-3 years), it is generally recommended that they have frequent, short visits with the non-custodial parent to build attachment and a sense of security.
At this stage, young children need consistency, and overnight stays may be limited, especially if the child is still breastfeeding or highly dependent on the primary caregiver. The focus during this age is often on ensuring the child has frequent contact with the non-residential parent to build a bond, while maintaining a stable routine with the primary caregiver.
For preschoolers and young children (3-5 years), custody schedules can gradually expand to include overnight visits with the non-residential parent, as children at this age can handle longer periods of separation from their primary caregiver.
The frequency of visits may increase, with weekends or mid-week visits being common. The parenting schedule should still ensure stability in the child’s routine, particularly in terms of sleep, meals, and playtime, as these are critical for their development at this stage.
For school-age children (5-12 years), more flexible custody arrangements can often be implemented, including shared care arrangements where the child spends equal or near-equal time with both parents. At this age, children can adapt to longer stays away from one parent, and custody schedules may include alternating weekends, school holidays, and even split weeks.
The child’s schooling and extracurricular activities must also be considered when crafting a custody schedule, ensuring minimal disruption to their education and social life. As children get older and more independent, they may have a say in the arrangements, particularly if they express preferences about their living situation, but the focus remains on their best interests.
Parental Responsibilities
Major Decisions
Shared parental responsibility means that parents must jointly make decisions about major long-term issues such as education, religion, and health.
Day-to-Day Care
The parent with whom the child is spending time can make day-to-day decisions while the child is in their care.
What Is Dispute Resolution?
Family Dispute Resolution (FDR)
Parents are required to attempt FDR before applying to the court for parenting orders, unless exemptions apply (e.g., family violence).
Parenting Plans
These are written agreements that set out parenting arrangements and can be developed through mediation. They are not legally enforceable but can be made into consent orders by the court.
Court Process
1. Applications:
If parents cannot agree, either can apply to the Federal Circuit and Family Court of Australia for parenting orders.
2. Interim Orders:
Temporary orders can be made until the final hearing.
3. Final Orders:
Made after a hearing where both parents present their case.
Child Custody Laws Victoria
In Victoria, child custody laws fall under the Family Law Act 1975, which is a federal law governing all states and territories in Australia. These laws focus on the “best interests of the child” as the paramount consideration in any decisions about parenting arrangements.
The term “custody” may not be frequently used in legal contexts; instead, the focus is more on parental responsibility and parenting orders, which define the responsibilities and rights of each parent regarding the care and welfare of the child after separation.
Equal shared parental responsibility is the presumption under the law, meaning both parents are expected to make joint decisions on major aspects of the child’s life, such as education, healthcare, and religious upbringing.
However, this does not automatically mean equal time with the child. The court assesses whether equal or substantial shared time is in the child’s best interests and practical based on the family’s circumstances. If shared parental responsibility is not appropriate due to factors like family violence, abuse, or neglect, the court can assign sole parental responsibility to one parent.
In cases where parents cannot agree on parenting arrangements, family dispute resolution (FDR) is mandatory before approaching the court, unless there are exceptions like family violence. If FDR is unsuccessful, parents can apply for parenting orders from the Federal Circuit and Family Court of Australia.
These orders can determine where the child lives, how much time they spend with each parent, and how parents share responsibilities. Parenting orders are legally binding and enforceable, and non-compliance can result in serious legal consequences.
The courts in Victoria, as with the rest of Australia, aim to ensure that children maintain a meaningful relationship with both parents, provided it is safe and in the child’s best interests.
Parenting arrangements are often flexible and designed to suit the specific needs of the child and the family. These arrangements can be reviewed and modified over time as the child’s circumstances and needs evolve.
Am I Eligible for Legal Aid and Support Services?
Legal Aid
Available for those who qualify based on income and assets.
Support Services
Various services provide support, including counseling, legal advice, and mediation services.
Relocation and Travel
Relocation
If one parent wants to move a significant distance away, they need to seek the other parent’s agreement or a court order.
International Travel
A parent needs the other parent’s consent or a court order for international travel with the child.
For specific advice and up-to-date information, it’s advisable to consult a legal professional or a family lawyer in Dandenong or where you live.
Your Family Lawyer in Dandenong
