Child Custody FAQs

In short, “child custody” or parenting is the term used to describe a parenting order. A parenting order is a set of orders made by a court about parenting arrangements for a child. A court can make a parenting order based on an agreement between the parties (consent orders) or after a court hearing or trial. When a parenting order is made, each person affected by the order must follow it. If the parenting order provides that two or more people have equal shared parental responsibility, any decision about a major long-term issue in relation to a child must be made jointly. This requires each person to consult with the other person and make a genuine effort to reach a joint decision.

Under the Family Law Act 1975 (Cth), the court ultimately allocates time— which include both parental responsibility and parenting time—according to what is in the best interests of the child. In determining what is in the best interests of the child, the court considers a wide variety of factors, including, for example:

• Wishes of the child, if the child is old enough to reasonably voice his or her wishes;
• Mental and physical health of all parties;
• Ability of parents to cooperate with one another;
• Level of each parent’s participation in making significant decisions about the child’s upbringing in the past;
• Prior agreement or conduct between the parents related to significant decision-making responsibilities and/or parenting time;
• Wishes of the parents;
• Child’s needs; and
• Willingness of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child.

Parental responsibility is defined under the Family Law Act as the responsibility to make important decisions for the child that will impact the child’s life now and in the future. Examples include the child’s education, health care, and religious upbringing.

Parenting time includes, according to the Family Law Act, the time when a parent is responsible for the child, takes care of the child, and makes the smaller day-to-day decisions that impact the child.

In short, the answer to this question is yes. Parental time is allocated either through an order issued by the court (either as agreed between the parties (by consent of both parties) or not agreed by the parties (by a judge after a hearing)) or through a “parenting plan,” which parents can work together to develop. A parenting plan does not have to be approved by the court and can be agreed between the parties. Parents can also have that agreed parenting plan converted into court orders and ask that it be approved by the Court by consent, which means that the agreed parenting plan is enforceable through the Court. If parents seek that a parenting plan be approved by the court then the court will usually grant the orders as contained in the parenting plan provided that they are based on what is in the child’s best interests. An agreed parenting plan or parenting orders give parents more flexibility and a greater role in deciding how parental time will be shared. When parents cannot come to an agreement on a parenting plan or parenting orders about allocating time with the children, that is when the court will make the decision and will issue a parenting order and judgment.

A parenting plan or parenting order can allocate parental responsibility to be shared between the parties for the significant decision-making responsibilities of the child. In the alternative a parenting plan or parenting order can allocate sole parental responsibility for one or all of the significant decision-making responsibilities of the child. A parenting plan or parenting order can also allocate parenting time including time to be spent with each of the parents during school term, school holidays and special occasions. In situations where the parents can agree to some things but not others the court can determine the issues which are not in agreement. However even if you cannot come to an agreement in relation to all parenting issues it is usually always better for parties to come to an agreement on some issues rather than no issues. Hence you should never take an all or nothing approach to a parenting agreement.