How does family law work for children?
The law covers care and welfare arrangements for children, between their parents and other carers, for example, grandparents or other family members. Separation, divorce or re-marriage does not change your duties and responsibilities as a parent.
The main concern of the law is to make sure that the best interests of children are met. This includes children having the benefit of both parents’ meaningful involvement in their lives and that they are protected from physical or psychological harm. The need to protect a child from physical and psychological harm, including family violence and abuse will be given the highest priority.
The law encourages parents and other people interested in the welfare of children to try to agree on arrangements for children. It is best if you and your ex-partner decide together what to do about the children. For example:
- where the children will live
- how they will be financially supported
- how they will maintain a relationship with both of you and other significant people.
In making your decisions, you should look at what is in the best interests of the children. A Family Relationship Centre, Legal Aid Queensland, or other family dispute resolution service may be able to help you and your ex-partner reach agreement on these issues, as well as offering services or referrals aimed at improving the relationship between you both.
If there is family violence, it may not be possible to negotiate with the other parent. You can contact specialist family violence services to help you. Legal Aid Queensland, a Family Relationship Centre or the Family Relationship Advice Line can refer you to a specialist family violence service in your area.
If the children are involved in a child protection case because of neglect or child abuse concerns, the family law courts do not usually consider an application until that case is finished. Child protection proceedings happen in the state or territory childrens court.
There is no set age when children can decide where they live or who they spend time and communicate with. The law takes into account children’s emotional and intellectual maturity as well as their age when considering their wishes. See Deciding children’s best interests.
What is a parenting order?
A parenting order is a court order about children that sets out particular responsibilities of parents and other carers. A parenting order may cover:
- where the children live
- who the children spend time and communicate with, and
- any other issues relevant to the children’s care, such as schooling or medical treatment.
Parenting orders can also include the process to be used if there are disagreements about the order later to try to sort out an agreement. If there are two or more people sharing parental responsibility for long term decisions, a parenting order can include the form of communication each person will use with each other.
Parenting orders can be made through the court by ‘consent’ (where you both agree - see Parenting plans and Consent orders), or made by the court after a trial or hearing (where you both argue your case). If the situation is urgent, interim parenting orders can be made by urgent application.
Who can apply for parenting orders?
You can apply for a parenting order for a child if you are the child's parent, grandparent or any other person concerned with their welfare. Both parents must be part of the agreement or order. The law recognises that every family is different and people other than parents (such as grandparents and extended family), may play an important role in the children’s lives. For this reason, people other than the parents can apply for an order or can be included in an order. If you apply for a parenting order and you are not the parent, you may have a meeting with a family consultant to discuss your application.
If everyone involved does not agree to the application for a parenting order, the court may ask for a report from a family consultant to discuss how the order would work in practice. This helps the court to decide which orders are in the children’s best interests.
Family consultants are child and family specialists who help and advise people in family law cases in the family law courts. The court can order people to see a family consultant and for the family consultant to write a family report.
The family consultant may interview the children, the people involved and other significant people in a child’s life. They may also spend time with the child and the people involved together. Anything said to a family consultant is not confidential and can be used in court as evidence.
Before you apply for a parenting order
Before you make an application for a parenting order, you must try to sort out an agreement with your ex-partner (or other people involved). If you agree, you don't need to go to court to formalise your agreement - see Parenting plans and Consent orders.
You must include a certificate from a family dispute resolution practitioner with your application to say you have either been to, or attempted to go to, family dispute resolution, or that in the practitioner’s opinion it is not appropriate for you to go. There are exceptions to this. See Family dispute resolution.
Parenting orders and family violence or child abuse
If any person thinks a child is at risk of family violence or child abuse they must tell the court. They also must tell the court if they are aware that a child or another member of the child’s family is under the care of, or being investigated by a state or territory welfare authority (such as the Department of Communities, Child Safety and Disability Services). If a party or independent children’s lawyer is aware that there is a family violence order relating to a family, they must tell the court.
If the court finds there has been family violence or child abuse, it will be protective in the orders it makes. It may not immediately make a parenting order, or may order an investigation or a report from a state welfare authority. The court will try to make an interim order that protects the children.
In situations where each party says different things about the family violence and the court cannot decide who is telling the truth, the court may order that one party’s time with the children is supervised. The court may also order the appointment of an independent children’s lawyer, who can investigate the matter further. The independent children’s lawyer can make a recommendation to the court regarding the best interests of the children.
The court will make sure you get information about services and options available to you 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 you receive information later.
If the court considers children may be at risk in one parent’s care, the court can order that they spend time or communicate with that parent under certain conditions or under another person’s supervision. The person who supervises 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.
A parenting order will override (replace) a family violence order made by your local magistrates court if the two orders say different things. The family law courts can also order state and territory agencies (such as a child welfare agency) to give information to the court they may have about family violence, child abuse or allegations of these.
See Family and domestic violence for more information about procedure if there is or has been family violence.
If there has been family violence or child abuse, or the risk of these, you should get legal advice. If you are considering family dispute resolution, let the family dispute resolution service know immediately.
Parenting orders - what the court considers
The court’s main consideration is making sure that the best interests of children are met. This includes children having the benefit of both parents’ meaningful involvement in their lives and that they are protected from physical or psychological harm. However, the need to protect a child from physical and psychological harm, including family violence and abuse will be given the highest priority.
The court presumes it is in the children’s best interests for parents to have ‘equal shared parental responsibility’ for the long term decisions about a child. This does not apply if there has been child abuse or family violence by a parent or a person who lives with the parent. This includes abuse of any child within these families. Other evidence may convince the court that equal shared parental responsibility is not in the children’s best interests.
When making a parenting order, the court may also look at the parent’s attitude to their parenting responsibilities, for example if they have shown they have paid child support or turned up for their time with the child.
The court can make orders preventing a child from seeing a parent if a child is at risk of harm. If there has been family violence or child abuse, get legal advice.
Equal shared parental responsibility
Equal shared parental responsibility is not the same as equal parenting time. Equal shared parental responsibility means both parents share major long term decisions about the children. This includes children’s:
- medical matters
- religious matters
- cultural matters
- living arrangements.
You and the other parent do not have to talk to each other about other issues that are not major and long-term, for example what a child eats or wears, unless a court decides you must. If the court makes a parenting order that says both parents (or other significant persons) have equal shared parental responsibility, then those persons must consult each other and make a genuine effort to come to decisions together regarding major long term decisions about the children.
If the court decides you have equal shared parental responsibility, the court must also consider whether it is practical and best for the child 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 at special events such as birthdays and school concerts.
The law does not make a parent spend time with or talk to their children if that person does not want to. However, parents have an obligation to encourage their children to spend time with, and to have a meaningful relationship with the other parent, unless there is a risk to the children. This includes not saying or doing things that affect the child’s relationship with the other parent.
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 people involved live
- each parent’s ability to share care and communicate with one another
- any other consideration the court thinks relevant.
What if I start a new relationship?
You don’t have to talk to your former partner about starting a new relationship, but you do need their agreement if you want to move to an area that makes it difficult for the children to see them. See Parents moving house and get legal advice.
If parenting orders are broken
It is very serious if someone disobeys (breaches) a court order, unless there is a reasonable excuse. It is also serious to help another person disobey a court order or try to stop them from obeying a court order. ‘Reasonable excuse’ has a legal meaning under the Family Law Act. You have a reasonable excuse if you contravened (breached or failed to follow) the order because:
- you believed you had to, to protect someone's health or safety
- you did not understand that you were breaking the order at the time.
If you are accused of failing to follow a court order, you should get legal advice.
The court has wide powers to deal with people who breach parenting orders. If the court finds a person breached an order without a reasonable excuse, it can order that person to participate in a parenting program run by an approved counselling service. The aim is to help people focus on their children’s needs and to sort out conflict.
The court may also change the existing order, for example, to compensate the other parent for any loss of time with the children and to vary other arrangements. If a parent disobeys an order more than once, or if the court believes the parenting order is being ignored, there may be more severe penalties.
These penalties include:
- paying for any expenses incurred because of the breach (such as loss of airfares)
- paying some or all of the other person’s legal costs
- community work
- entry into a bond for up to two years
- a fine
- a jail term of up to 12 months.
If your child is in someone else's care and you think they may be in danger, contact the police and get legal advice.
It is a matter for the police whether they take action.