The Complete Guide to Applying for Custody of a Child in Australia

Please be aware that in Australian family law, the term “child custody”, while still used by the general public at times, is being phased out in favour of language such as “parental responsibility” and “parenting arrangements.”

This shift reflects a child-centred approach, emphasising cooperation and shared decision-making between parents. This more modern terminology reduces conflict, avoids the harsh connotations of the word “custody,” and aligns with family law reforms that prioritise staying focused on the child’s best interests.

Applying for ‘custody’ of a child in Australia requires the use of consent orders or parenting orders.

Consent orders are made by application to the Federal Circuit & Family Court of Australia. They don’t always require a court hearing, as long as the parties involved agree to the orders being made. In this article, we’ll look at the different ways to apply for parenting time (formerly known as child custody), whether shared parenting arrangements or sole care.

Things to Include in Parenting Plans & Orders

When creating a parenting plan or applying for parenting orders, it’s essential to outline clear arrangements to ensure both parents understand their responsibilities and the child’s needs. If a child is old enough, their views should be considered regarding living arrangements and visitation.

The following points should be addressed when making arrangements or applying to the courts:

  • Living arrangements: Where the child will primarily live and how time will be shared between parents, including holidays and special occasions.
  • Decision-making: Who will make major decisions about the child’s education, medical treatment, and general welfare.
  • Visitation: Specific times and arrangements for the child to spend time with each parent if they do not have overnight care.
  • Communication: Guidelines for how parents will communicate with each other and with the child, especially if there are mental health issues or substance abuse concerns.
  • Emergency situations: Protocols for handling medical emergencies or sudden changes in circumstances, such as one parent becoming unwell or unavailable.
  • Dispute resolution: Methods for resolving disagreements, such as through a family dispute resolution practitioner or family counsellor.
  • Child support: This area usually requires a separate private arrangement or a Child Support Agency assessment.

These elements help to create a structured and clear agreement that focuses on the child’s welfare and the parents’ responsibilities, making it easier to navigate family relationships after separation.

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Making Parenting Arrangements – Parenting Plans

Parents can discuss their child’s individual needs and come to their own agreement about where a child will live and how they will spend time with their parents. If parents agree on the future arrangements for children in the form of a parenting plan, they do not have to ask the court to determine the arrangement.

Parenting plans and orders both set out arrangements for children, but parenting orders create legally enforceable obligations. A parenting plan is a written agreement that sets out parenting arrangements, but it’s not legally binding.

Understanding Consent Orders & Parenting Orders

A parenting order is a legally binding agreement issued by the court that outlines arrangements for a child’s care, living arrangements, and other responsibilities. These orders provide clarity and ensure stability for the child, addressing key aspects such as decision-making authority and the division of parenting time.

Parenting Orders vs. Consent Orders

Consent Orders: These are agreements made between parents (or other parties, such as grandparents), and approved by the court. They hold the same legal weight as parenting orders but are established through mutual agreement, avoiding court-imposed decisions.

Parenting Orders: These are issued by the court when parents or other parties cannot agree on arrangements for the child. They are binding and enforceable.

Key Aspects of Consent Orders & Parenting Orders

There are certain terms used when drafting parenting orders that may not be familiar if you haven’t previously heard them, like decision-making responsibility, which forms an important part of orders. In a shared care situation, one or both parents may be responsible for making decisions.

Decision-Making Responsibility

Parenting orders address how major decisions about the child’s welfare, such as education, healthcare, and religion, will be made – and who they will be made by.

Equal Shared Parental Responsibility: This requires both parents to consult and agree on significant decisions. It is the default presumption for shared care unless evidence shows that shared responsibility is not in the child’s best interests.

Sole Parental Responsibility: This is granted when one parent is given the authority to make major decisions independently, often in cases involving family violence, abuse, or high conflict. 

Time and Care Arrangements (Child ‘Custody’): Parenting orders outline how the child’s time will be divided between the parents. This used to be called ‘child custody’ but is no longer referred to using these terms.

Shared Care Arrangements: This means the child spends significant time with both parents, fostering ongoing relationships. This does not always mean equal time but ensures meaningful involvement from both parents. The arrangement of shared time can be split in any way that works for the parents, so long as it is in the best interests of the child or children.

Sole Care Arrangements: One parent has primary care of the child, with the other parent allocated limited or supervised time, if any. This may occur when shared care is impractical or unsafe. It may also occur if one parent has the majority of care, but an order is in place for grandparents, for instance, to have some time and access to the children.

Who Can Apply for Parenting Orders?

  • A Child’s Parents
  • Grandparents
  • Any individual concerned with the child’s welfare, such as other relatives or caregivers

The law acknowledges that children have the right to maintain regular contact and communication with individuals important to their care and development, such as grandparents and other extended family members. If these individuals believe they have a significant role in the child’s life, they can apply for Parenting Orders, which may include arrangements for spending time with the child.

Before applying to a court, you must follow pre-action procedures unless exempt.

Applications can be made jointly or separately. Sole applications are often necessary when an agreement cannot be reached or when there are safety concerns. When parents or involved parties have reached an agreement, an application can be made to the Federal Circuit and Family Court of Australia for consent orders.

This can be done at the same time as financial orders. They need to be drafted in a specific manner, which a Family Lawyer can assist you with, and lodged with an application fee through the Commonwealth Courts Portal. It’s wise to get independent legal advice before signing anything.

We’ll look at the different legal pathways below for obtaining consent orders or parenting orders in Australia.

Pre-Action Procedures

In Australian family law, pre-action procedures refer to the steps parents must take before starting formal proceedings in court, because most matters can be resolved without court intervention. These procedures are designed to promote resolution without the need for litigation and ensure the best interests of the child are prioritised. They give parents a chance to reach an agreement, often with the help of mediators, lawyers – or both – although it can be done simply by agreement and application.

Key pre-action steps include:

  1. Discussion: If you and your former partner (or anyone else who is applying for an order with you) can agree on your children’s living arrangements and other important matters about your child’s upbringing, you can create an informal parenting plan or have the written agreement drafted into a consent order.
  2. Negotiation: Parents are encouraged to negotiate directly or with the assistance of their lawyers to reach an agreement on care (custody) matters. Getting legal support and good early advice can ensure that agreements are made about your child’s life that promote their best interests and long-term wellbeing.
  3. Mediation: If parents separate and are still having trouble reaching an agreement about family law matters, mediation is generally the next step. Under the Australian Family Law Act, parents must attempt family dispute resolution (FDR), a form of mediation, before applying for court intervention. This is mandatory unless there are exceptions, such as domestic violence, child abuse or other urgent or safety factors.
  4. Family Dispute Resolution Certificate: If mediation does not resolve the dispute, or one party does not attend, a certificate from an accredited mediator is required before applying to the Family Court or Federal Circuit Court.
  5. Family Court Hearing: If mediation and negotiations fail and a certificate is obtained, parents can apply to the Federal Circuit and Family Court of Australia. The court will schedule a hearing to assess the case, explore further options for resolution, or make interim orders.
  6. Family Court Trial: If the dispute cannot be resolved through hearings or alternative processes, parenting proceedings may go to trial. At the trial, both parties present evidence, and the court will make a final ruling on parenting arrangements (custody) and decision-making based on the child’s best interests. The court process can be stressful, expensive and can even take years to resolve some complex matters. A decision will be made at the Final Hearing, and court orders will be made if no resolution is reached sooner.

These pre-action steps aim to reduce conflict and encourage parents to find mutually agreeable solutions before resorting to court action.

Family Violence and Child Abuse

When making parenting orders, the Family Courts always prioritise the best interests of the child. If there are concerns about family violence or child abuse, the court will make decisions that ensure the child’s safety is protected. In some cases, the court may appoint an Independent Children’s Lawyer (‘ICL’) to represent the child’s interests and ensure their voice is heard in the proceedings.

If family violence is a concern, the court can issue family violence orders or take action based on reasonable grounds to protect the children involved. The Lighthouse Risk Screen is used to identify cases where family violence or child abuse might be an issue, helping to determine the urgency and resources needed for the case.

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Urgent Hearings For Care of Children (‘Custody’)

Urgent hearings may be requested for parenting matters when there are immediate concerns about the child’s safety or wellbeing, such as in cases of child abuse or domestic violence or when a parent is very unwell or is incarcerated. Other urgent situations include a parent being unable to be located or when mental health issues significantly affect their ability to care for the child.

In such cases, the court can fast-track proceedings to ensure the child’s safety and best interests are prioritised. The court considers the risks posed to the child and may issue temporary orders, such as a change in care or supervised visits, while a more permanent arrangement is determined.

Applying for Sole Care (‘Sole Custody’)

Applying for full care of a child (or full custody) is a significant step and typically happens when one parent believes the other is unable to care for the child or the other parent does not wish to be in the child’s life.

This may be due to reasons such as substance abuse, mental health issues, or an inability to provide a stable environment for the child. The Family Law Act sets out the criteria the court considers, with the child’s best interests being the primary focus. If the other parent disagrees with the application for sole care, they will have the opportunity to present their case.

The court may require a Family Dispute Resolution Practitioner, Report Writer, ICL, Psychologist, Family Counsellor or other child specialists to help facilitate negotiations. If an agreement is not reached, the case will proceed to a hearing. The court may approve sole care and decision-making if it is convinced that it serves the child’s best interests.

Enforcing Parenting Arrangements

Enforcing your parenting arrangements will vary depending on the type of agreement you have. If you have an informal agreement or parenting plan, and one parent is not adhering to it, you’ll need to first engage in mediation with a Family Dispute Resolution Practitioner to try to resolve the issue if you cannot work it out between yourselves.

For formal parenting orders, including consent orders, you may still be required to attend mediation unless there is an exemption. If mediation fails to resolve the matter, you can take the next step by applying to the Family courts for enforcement of the orders.

Changing Parenting Arrangements

The simplest way to amend your parenting arrangement is to negotiate a new agreement directly with your ex-partner.

  • If you have an informal agreement or parenting plan, you can change it at any time by making a new agreement.
  • If you have parenting orders, including consent orders, you can change your orders by making a new agreement with your ex-partner, but the courts will require significant changes in circumstances for this to happen.

It is highly recommended to seek legal advice before making any long-term decisions or applying to the courts.

Conclusion

To summarise, here are five key takeaways from this article on parenting arrangements in Australia:

  • Child Custody Terminology Shift: In Australian family law, the term “child custody” is being replaced with more child-focused language like “parental responsibility” and “parenting arrangements,” emphasising cooperation and the child’s best interests.
  • Parenting Orders vs. Consent Orders: Parents can either agree to a parenting arrangement through mutual consent (Consent Orders) or have a court-imposed decision (Parenting Orders) when they cannot agree. Both types of orders are legally binding.
  • Pre-Action Procedures: Before applying to the court, parents must attempt to resolve issues through discussions, negotiation, or mediation (Family Dispute Resolution). Court involvement should be a last resort.
  • Key Elements in Parenting Arrangements: Parenting arrangements should cover living arrangements, decision-making responsibilities, visitation schedules, and emergency procedures, always prioritising the child’s welfare.
  • Family Violence Considerations: In cases involving family violence or child abuse, Australian courts prioritise the child’s safety, often appointing an Independent Children’s Lawyer (ICL) to represent the child’s interests.

An experienced Family Lawyer can help you understand your legal rights and responsibilities when applying for custody of a child in Australia, and clarify how the law applies to your specific situation. Additionally, they can assist in negotiating an agreement, potentially avoiding the need for court proceedings altogether. If you’d like to discuss your parenting matter further, please get in touch with our team. We are here to help.

Start your journey today – connect with our team for a personalised consultation.

This is general information only. Please contact the team at Tonkin Legal for expert legal advice that takes your unique personal situation into account prior to making any decisions based on this article.

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