In family law, parenting orders regulate arrangements for children after separation. This includes:
- “Time with children”(sometimes described as “spending time” and “living with”); and
- “Parental responsibility” (decision-making power regarding major long-term issues).
A parent may have substantial time with a child but limited parental responsibility (or vice versa), depending on what the Court considers to be in the child’s best interests.
Throughout family law proceedings, parents are encouraged to reach mutual agreement on children’s matters to minimise court intervention.
What are parenting orders?
Parenting orders are orders made by the Federal Circuit and Family Court of Australia dealing with children. They can cover matters such as:
- who the child lives with;
- who the child spends time with and communicates with (and how);
- allocation of parental responsibility for major long-term decisions;
- changeover arrangements and travel;
- conditions designed to manage risk (for example, supervision or injunctions).
Parenting orders may be sought by a child’s parents and, in appropriate cases, by other persons concerned with the child’s care, welfare or development (for example, grandparents).
The Court’s considerations
When making parenting orders, the Court’s paramount consideration is the best interests of the child.
In practical terms, the Court considers matters such as:
- the child’s safety, including any history or risk of family violence or abuse;
- the child’s developmental, emotional and practical needs;
- the capacity of each parent (and other relevant carers) to meet those needs;
- the benefit to the child of maintaining meaningful relationships (where safe) with both parents and significant others;
- any views expressed by the child, taking into account the child’s maturity and circumstances.
Importantly, the Court does not determine parenting matters by allocating “fault” for the relationship breakdown. Allegations such as infidelity are usually irrelevant unless they bear on the child’s welfare or safety.
Time with children (living with / spending time / communication)
Time with children concerns the child’s day-to-day arrangements and the schedule for:
- where the child lives;
- when the child spends time with each parent (weekdays, weekends, holidays, special occasions);
- how the child communicates when not in a parent’s care (telephone, video calls, messages).
There is no legal presumption that parents will have equal time. Any time arrangement must be workable and, most critically, safe and in the child’s best interests.
Age and attachment can be relevant
For very young children, the Court may consider:
- the child’s primary attachment and routine;
- the child’s ability to tolerate changeovers and overnights;
- each parent’s demonstrated capacity to manage the child’s day-to-day care.
Family violence and risk management
Where there are allegations or findings of family violence, the Court may make protective orders affecting time, for example:
- supervised time (supervision by an agreed family member or at a professional supervision service);
- orders limiting or structuring changeovers (including changeover at a contact centre or via third parties);
- injunctions restraining derogatory comments or harmful conduct in the child’s presence.
These measures are used to balance (where possible) the child’s benefit of a relationship with both parents against the need to ensure the child’s physical and psychological safety.
Parental responsibility (decision-making power)
Parental responsibility refers to the duties, powers and authority parents have in relation to their children. In parenting matters, the key focus is often on decision-making about major long-term issues, which typically include:
- education (including school choice);
- major health decisions;
- the child’s name;
- religious and cultural upbringing;
- changes to living arrangements that make it significantly harder for the child to spend time with the other parent.
Separate from “time”
Parental responsibility is not the same as day-to-day care. For example, a parent may “spend time” with a child and make routine decisions during that time (meals, bedtime, ordinary activities) without necessarily holding equal authority over major long-term decisions.
Equal parental responsibility: when it applies, and when it may not
Historically, Australian family law operated with a presumption in favour of equal shared parental responsibility in many cases. However, where there are concerns such as family violence, abuse, or serious welfare risks, the Court may find that equal shared decision-making is inappropriate.
Depending on the evidence, the Court may make orders for:
- sole parental responsibility (one parent makes major long-term decisions); or
- allocated parental responsibility for specific issues (for example, one parent has sole parental responsibility for health, while other issues remain joint).
Parenting matters can be complex and have a significant impact on you, your children and your former partner. It is important to have a comprehensive agreement in place to provide clarity and certainty for the whole family.
For more information or to discuss your options, contact our experienced family law team at mail@redhale.com.au or call us on 02 9587 3866.
