What the court considers when making a parenting order

What the court considers when making a parenting order

When making a parenting order, the main consideration of the court is whether the proposed arrangements are in the best interests of the children.

The court presumes that it is in the best interests of the children for parents to have ‘equal shared parental responsibility’, but it will look at what is best for the children in each case.

This presumption will not apply if there has been child abuse or violence by a parent or a person who lives with the parent (including abuse of any child within these families).

Deciding children's best interests

The court’s most important considerations are:

  • protecting children from physical and psychological harm, including children seeing family violence, being neglected or being physically or psychologically hurt
  • the benefit of children having a meaningful relationship with both parents.

If these two conflict, then the need to protect the child is given greater weight by the court.

The court must also consider:

  • any views of the children, balanced against how much they understand and how mature they are. Children do not have to express their views if they don’t want to
  • the kind of relationship children have with their parents and other significant people, including grandparents, brothers and sisters, and other relatives
  • the extent to which each parent has been involved (or not) with decisions about major long-term issues about the children
  • how much time each parent has (or has not) spent with and communicated with the children
  • whether each parent has supported the children financially or failed to do so, for example paying child support on time
  • the likely effect of any change to where children have been living or staying, including separating them from either parent, grandparents, siblings, any other relatives or other people important to their welfare
  • the practical difficulty and expense of children seeing each parent, and whether that will affect their right to have a relationship with each parent (this includes spending time with and/or communicating with each other)
  • how much each parent and any other person (including grandparents and other relatives) can provide for the children’s physical, emotional and intellectual needs
  • the maturity, background (including culture and traditions), sex and lifestyle of the children and of each parent, and anything else about the children that the court thinks is important
  • the right of children who are Aboriginal or Torres Strait Islander to enjoy their culture (including with others of that culture)
  • each parent’s attitude to the responsibilities of being a parent and towards their children in general
  • any family violence involving the children or a member of their family
  • any contested or final family violence order that includes the children or a member of the children’s family
  • whether the orders that the parties have applied for will lessen the risk of further court proceedings
  • any other considerations the court thinks are important.

The court can also look at:

  • the history of the relationship and the care of the children
  • the events that have happened since your separation
  • the circumstances that have existed since your separation.

Equal shared parental responsibility

Parents have duties and responsibilities in relation to their children. Equal shared parental responsibility means both parents sharing major long-term decision making about the children. It is not the same as equal parenting time or shared care.

Equal shared parental responsibility includes making decisions about children’s:

  • medical matters
  • religious matters
  • cultural matters
  • education
  • living arrangements.

Day-to-day decisions, such as what the children eat or wear, are not included.

If the court finds both parents share parental responsibility, then the parents must try to come to agreement about major long-term decisions affecting the children.

Equal shared responsibility is not presumed if there has been child abuse or violence by a parent or a person who lives with the parent (including abuse of any child within these families). Other evidence may convince the court that equal shared responsibility is not in the best interests of the children.

Parenting time

If equal shared parental responsibility is presumed, the court must consider whether it is practical and in the best interests of the children for them to spend equal time or ‘substantial and significant time’ with each parent.

Substantial and significant time includes children spending weekdays, weekends and holidays with each parent and each parent having meaningful involvement with the children’s daily routine. It includes things such as a parent spending time with children on significant days such as birthdays or at school concerts.

Practical considerations

When deciding whether an arrangement is practical, the court will look at:

  • how equal or substantial and significant time will affect the children
  • how far apart the parties live
  • each parent’s ability to:
    • share care and communicate with one another
    • resolve difficulties in relation to the proposed arrangements
    • make sure that the arrangement works in the best interests of the children, on an ongoing basis
  • any other consideration the court thinks relevant.

Other things to consider for parenting orders

The law does not require a parent to see their child. However, parents must not stop or interfere with the other parent's rights or responsibilities under the parenting order.

The court only considers making orders that the children do not see one parent in special circumstances, such as where the court considers the child to be at serious risk of harm. This is rare.

If the court considers that children may be at risk in the care of one parent, it can order that they spend time or communicate with that parent under certain conditions or under supervision by another person who has been agreed to by the court. This can be another relative or someone at a contact service. A contact service is a place where children can be dropped off and picked up or spend supervised time with a parent.

There is no defined age when children can decide on their own living or communicating arrangements. The law takes into account the emotional and intellectual maturity of children as well as their age when considering their wishes.

Considering children’s views

When making parenting orders, the court does not usually hear directly from children, although it can. Children do not usually go into court.

Children’s attitudes and views may be made known to the court in a family report or through an independent children’s lawyer.

Independent children’s lawyers

An independent children’s lawyer helps the court decide what arrangements are in the children’s best interests. The independent children’s lawyer does not represent any person in the case.

An independent children’s lawyer may:

  • get information from teachers, doctors or counsellors
  • issue subpoenas to find out other information such as criminal records
  • ask for drug and/or alcohol testing of the parties
  • consider all other evidence presented to the court
  • talk with the children
  • arrange for any family or psychological reports.

An independent children’s lawyer does not have to act on the children’s views, but must make sure that these views are put to the court.

Anyone taking part in the proceedings can ask the court to appoint an independent children’s lawyer. The court will decide if an independent children’s lawyer will be used.

National Legal Aid's website has more information about the role of independent children's lawyers for children and parents.