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Section 5.1: Types of Custody Arrangements

Child Custody and Parenting Orders

By: Room Staff |

Divorce in Australia involves understanding crucial aspects of child custody and parenting orders. These legal frameworks prioritise children’s well-being and future. Grasping their significance ensures informed decisions for families.

Central to custody law is the principle of equal shared parental responsibility. This doesn’t always mean equal time but considers children’s best interests. Financial support is also essential, ensuring children’s needs are met.

Parenting orders play a pivotal role in outlining custody arrangements and parental duties. This overview aims to demystify these elements and guide parents through their legal journey.

Key Takeaways

  1. Child custody covers parental decision-marking and where a child lives.
  2. Parenting orders reduce conflict and prioritise children’s welfare, as mandated by the Court.
  3. The Family Law Act governs child custody in Australia.
  4. Equal shared parental responsibility encourages parents to cooperate on long-term parental decisions. It doesn’t guarantee equal visiting time.
  5. Both parents are financially responsible for their children post-divorce. Obligations may be managed privately or through Services Australia.
  6. Child support is calculated based on parents’ income, children’s ages, and care percentage.
  7. Informal child support agreements offer flexibility but come with risks.
  8. Parenting orders provide clarity, enforcement, conflict resolution, and prioritise the child’s best interests.
  9. Consent orders are mutual agreements formalised by the Court. Parenting orders are court-mandated arrangements when parents cannot agree.

Introduction to Child Custody in Family Law

Child custody can be divided into two distinct sections, which are legal and physical. The former lets parents decide on issues like healthcare, education and religious practice. The latter dictates where a minor will live or who assumes childcare responsibilities. Parenting orders provide an organised framework that helps avoid parental conflict. They also keep in mind what’s best for the kids’ welfare. This is something the Court prioritises above all else.

Parents can approach Family Relationships Centres or National Legal Aid for free legal advice. Using dispute resolution services may be necessary to reach amicable agreements.

woman taking care of her children

Australian Child Custody and the Family Law Act

Child custody is governed by the Family Law Act 1975. This legislation covers crucial legal concepts in child custody cases.

Equal shared parental responsibility

Equal shared parental responsibility governs decisions about children following a separation or divorce. This concept is enshrined in the Family Law Act 1975 (Cth). 2006 amendments particularly encourage parents to share responsibility for their children.

Parents are expected to share decisions about major long-term issues affecting their children. These issues can include education, religious and cultural upbringing and health care. It does not pertain to day-to-day decisions. These are usually made by the parent with whom the child is living.

Equal parental responsibility is not the same as equal time. The law encourages parents to share responsibilities. However, the children won’t necessarily spend equal time with each parent. The child’s best interests determine living arrangements and time spent with each parent.

Equal responsibility encourages cooperation and communication between parents. It aims to ensure parents remain involved in their children’s lives post-separation. However, issues like physical or psychological harm through family violence and child abuse may arise. In such cases, the Court will decide that equal parental responsibility is inappropriate. It will then make orders limiting or excluding the involvement of one parent.

equal shared parental responsibility with children

Financial responsibilities of parents for their children

Both parents retain financial responsibilities for their children after separation or divorce. This obligation can be managed privately or through the child support system. The focus is to ensure children receive adequate financial support from both parents. This support reflects the parent’s capacity to provide for it and the child’s needs.

Child support assessments

The Child Support (Assessment) Act 1989 covers child support in Australia. Services Australia administers the child support program. It assesses, collects, and transfers child support payments.

Child support is calculated using a formula that considers several factors, including:

  • The income of both parents, with adjustments for necessary living expenses.
  • The number of children and their ages.
  • The percentage of care each parent provides for the children.

Parents can agree on child support payments independently. However, these agreements must often be formalised through Services Australia for enforceability.

Informal agreements

Child support can be organised informally between parents after a divorce or separation. This arrangement allows parents to organise child support without going through Services Australia. However, while informal arrangements offer flexibility, they also come with risks.

Creating an informal agreement

  1. Agreement Details. Outline the amount of child support, the frequency, and the payment method. Consider including how to cover additional expenses for the child. This may include education, healthcare, and extracurricular activities.
  2. Written Agreement. While the arrangement is informal, it’s wise to document the agreement in writing. Both parents should sign this document. This can serve as a reference in case of future misunderstandings or disputes.
  3. Keep Records. Both parents should keep detailed records of all payments made and received. This includes dates, amounts, and what the payments cover. Bank transfers or electronic payments are recommended for traceability.
  4. Review Periodically. Agree to review the arrangement periodically or when significant changes occur. This ensures the support remains fair and meets the child’s needs.
  5. Legal Advice. Although the arrangement is informal, parties should seek legal advice for valuable guidance. This ensures that the agreement is in the best interest of the child. A lawyer can also help draft the written agreement.

financial responsibilities of parents for their children

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Understanding parenting orders and their importance

A parenting order sets out parenting arrangements following separation or divorce. These orders can cover various issues related to the child’s care, welfare, and development. This includes who the child lives with, visitation rights, and other aspects of child care.

a parent and child meeting with a lawyer about child support (1)

Key aspects

A parenting order will cover crucial aspects of a child’s upbringing, such as:

  • Living Arrangements. Specifying with whom the child will live.
  • Time Spent with Each Parent. Detailing when and how the child will spend time with each parent. This includes holidays and special occasions.
  • Parental Responsibility. Determining how parents will share decision-making about major long-term issues. These include education, health care, and religious upbringing.
  • Communication. Outlining how and when the child communicates with each parent or extended family.
  • Any Other Aspect. Addressing other issues. These may include extracurricular activities, medical treatment, and travel.

Importance of parenting orders

Parenting orders provide many crucial benefits for co-parents.

  • Clarity and Certainty. Parenting orders provide clear and enforceable guidelines for the care of children. This reduces conflict and uncertainty between parents about their rights and responsibilities.
  • Best Interests of the Child. They ensure that the arrangements made are in the child’s best interests.
  • Conflict Resolution. They establish clear rules and expectations. In doing so, parenting orders can help minimise ongoing disputes between parents. This creates a more stable and peaceful environment for the child.
  • Enforceability. There are legal consequences if a parent does not comply with a parenting order. These can include court-imposed penalties. This enforceability helps ensure that the arrangements are followed.

family and a lawyer discussing about child custody and parenting orders

Types of parenting orders

All parenting orders function the same way and have the same application process. However, they may be entered into by agreement or to resolve a parental impasse.

Consent orders

Parents can enter a parenting consent order if they agree to parenting arrangements. The Court will only grant a consent order if it considers it in the child’s best interests. An existing parenting plan may be formalised as a consent order for enforceability.

Parenting order

If parents cannot agree on parenting issues, a party may apply for the Family Court to make orders. These orders should only be sought as a last resort. Before applying, the parties must attend mediation with a family dispute resolution practitioner.

Discussing the different types of parenting order


Understanding parental responsibility, financial support, and parenting orders is crucial. These mechanisms ensure children’s needs are met while fostering parental cooperation.

By clarifying these elements, parents can better navigate parenting post-divorce. This guide aims to clarify and support families navigating custody and parenting arrangements.

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