1.1.C.380 Custody order, court order containing custody order

Definition

Custody orders were issued by the Family Law Court before 11 June 1996, and are still valid despite the reforms to the Family Law Act 1975. From June 1996 custody orders were replaced by parenting plans (FA Guide 1.1.P.20) or parenting orders (FA Guide 1.1.P.19).

A custody order is a document issued by the Family Court that sets out the terms and conditions of who has custody of a child. Custody is defined in the Family Law Act as being:

  • the right to have the daily care and control of the child, and
  • the right and responsibility to make decisions concerning the daily care and control of the child.

A person who has custody of a child is taken to have legal responsibility (1.1.L.33) for the child.

A court order can, although does not always include custody orders.

Interpreting a court order

It is not always clear whether a court order is specifying custody or only contact and residence. If the court order does not assign custody to a particular person, it can be deemed that both parents have joint legal responsibility.

Variations to an original court order can be made as separate orders in addition to the original, or may replace the original. Unless the new order replaces all previous orders, all of the orders should be obtained and read in conjunction with each other.

Example of a court order

This example is drawn from a 'Terms of Settlement' Order of the Family Court.

Orders by Consent:

  • That all applications presently before the Court be withdrawn and dismissed.
  • That custody of the child be granted to the grandmother.
  • That the child reside with the father at such times and at such places as he and the grandmother may agree and in the absence of agreement as follows
    • from after school on Thursday until 6.00 pm Sunday each alternate week, and
    • during the first half of all school holiday periods.
  • That the child should reside with the applicant (grandmother) at all other times.
  • That the father and the grandmother will encourage and facilitate contact between the child and his mother at such times and at such places as may be appropriate.
  • That the father and the mother retain guardianship of the child and that the grandmother also be granted guardianship.

In this example, this court order replaces all previous orders. Sole custody has been given to the child's grandmother. The child's father has been given access, the terms of which are largely at the agreement of the father and grandmother. The child's mother has been granted access at times that either the grandmother or the father feel is appropriate.

The child's parents and grandmother are all guardians (1.1.G.80). Guardianship:

  • includes responsibility for the long term welfare of the child, but
  • does not always include the right to the daily care of the child.

Therefore, the child is a dependent child of his grandmother because she has legal responsibility for his day-to-day care, welfare and development. The child is however not a dependant child of either his mother or his father.

If the child was to spend 14 or more consecutive days in his father's care, the father would be considered to have legal responsibility for that period of care only and the child would be a dependent child of the father for that period.

Policy reference: FA Guide 1.2.1 Family tax benefit (FTB) - description, 2.1.1.25 Shared care of an FTB child

Last reviewed: 12 August 2019