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Parenting orders – what the court considers
The main consideration of the court is whether the proposed arrangements are in the best interests of the children. See ‘Deciding children’s best interests’ (link below).
The court presumes that it is in the best interests of the children for parents to have ‘equal shared parental responsibility’. This does 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). Other evidence may convince the court that equal shared responsibility is not in the best interests of the children.
Equal shared parental responsibility
Equal shared parental responsibility is not the same as equal parenting time. Equal shared parental responsibility means both parents sharing major long-term decision making about the children. This includes 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.
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 also includes 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
- 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 where 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 where children can 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.
Family reports
A family report may be ordered by the court to help the court understand the issues in dispute and the family relationships generally. The report is not made on behalf of either parent.
The report helps the court make a decision about parenting arrangements that are in the best interests of the children. It is made by a family consultant or other person approved by the court. This person can speak to the parents, the children and any other people who may have relevant information about the children or the issues in the dispute.
The report may include:
- the background to the dispute
- the current relationship between the parents
- the current relationship between the parents and the children
- the children’s views
- how the children see the relationship with significant adults in their life
- information on the cultural and linguistic (language) background of the children, and an opinion on how to make sure the children maintain a connection with this background
- an opinion on how to sort out the dispute.
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
- 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.
Note: Changing (or making) parenting arrangements may affect the amount of child support you receive. The laws about child support are completely changing, with the major change beginning on 1 July 2008.
It is important that you get legal advice about how these changes may affect you.
More information
Child support & child maintenance
Deciding children's best interests
Parenting orders & family violence