What the court considers when making a parenting order

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What the court considers when making a parenting order

When making a parenting order, the court's main consideration is whether the proposed arrangements are what is best for the children.

Ideally, this means the parents would have ‘equal shared parental responsibility’, but the court will look at what is best for the children in each case.

If a parent (or a person who lives with a parent) has been abusive or violent towards the children, it is unlikely the parental responsibility would be shared.

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 considerations conflict, then the need to protect the child is given greater weight by the court.

The court must also consider:

  • what the children think, 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), gender 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 the parent's separation
  • the circumstances that have existed since the parent's 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 there is an order for equal shared parental responsibility, 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 parents 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.

Allegations of family violence or child abuse

If there are allegations of family violence or child abuse, this will affect how family law court cases are managed.

The court can make arrangements to protect the safety of children and family members.

In situations where there is family violence or child abuse, a family dispute resolution practitioner may decide that you do not need to go to family dispute resolution before applying for a parenting order.

This includes where the other person's threats make it difficult for you to participate equally in the dispute resolution process.

You can also make an application directly to the court without getting a certificate from a family dispute resolution practitioner. However, the court must be satisfied that there is family violence or child abuse, or a risk of one or both of these.

What the court can do

When applying for parenting orders, it is important that you tell the court if:

Both are relevant to how your case is managed by the court.

If the court finds that there are issues of family violence or child abuse, it may not immediately make a parenting order. If Services Australia is involved or becomes involved in a child protection case, any family law proceedings will not continue. The court may order Services Australia to provide any relevant information. The court will try to make an 'interim' (temporary) order that protects the children.

In situations where each parent says different things and the court cannot determine who is telling the truth, the court may order that one parent's time with the children is supervised.

The court may also order the appointment of an independent children’s lawyer, who can investigate further and make a report. National Legal Aid's website has more information about the role of independent children's lawyers for children and parents.

The court will make sure anyone experiencing family violence can get information about the available services and options from a family counsellor or family dispute resolution practitioner. If there is an urgent risk of family violence or child abuse, the court may make a parenting order and direct that the affected family member receive information later on.

If there has been family violence or child abuse, or there is risk of either, get legal advice. If you are considering family dispute resolution, let the family dispute resolution service know immediately.

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 what they want.

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 parents
  • 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 what the children want, but must make sure that these views are heard by 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.

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