What the court considers when making parenting orders
All families are different.
When making arrangements for children or applying for a parenting order, it’s important to keep in mind the court must consider what’s in the children’s best interests.
If your children are in someone else's care and you think they may be in danger, contact the police. It is a matter for the police whether they take action. In an emergency, call 000.Get legal advice.
Children’s best interests and parenting arrangements
The Family Law Act sets out what the court must consider when making parenting orders. The court must consider what’s in the children’s best interests. It will do this by looking at the following considerations:
- what arrangements would promote the safety (including safety from family violence, abuse, neglect, or other harm) of the child; and each person who has care of the child (whether or not a person has parental responsibility for the child)
- any views expressed by the child - the court will look at how much children understand and how mature they are; children don’t have to express views if they prefer not to.
- the developmental, psychological, emotional and cultural needs of the child
- the capacity of each person who has, or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs
- the benefit to the child of being able to have a relationship with thei child’s parents and other people who are significant to the child, where it is safe to do so, and
- anything else that is relevant to the particular circumstances of the child.
The court will also look at:
- any history of family violence, abuse or neglect of the child or a person caring for the child
- family violence orders current and past) that apply to the child or a member of the child’s family.
The court must also consider the right of Aboriginal and/or Torres Strait Islander children to enjoy their culture, as well as the support they will receive to connect to their culture.
Children's views
When making parenting orders, the court doesn’t usually hear directly from children, although it can. Children don’t usually go into a court.
Children’s views and wishes may be made known to the court in a family report or through an independent children’s lawyer.
Parental responsibility
Parental responsibility means all the duties, powers, responsibilities and authority parents have by law in relation to their children.
Parents have parental responsibility, subject to any court orders that might be made.
When making parenting orders, the court can consider whether it is in the child’s best interest to make an order for parental responsibility to be exercised, jointly or separately.
‘Shared parental responsibility’ or ‘joint' decision making’ means both parents share decision making for major long-term issues about the children.
This includes making decisions about the children’s:
- education
- religious and cultural upbringing
- health
- name
- living arrangements.
It doesn’t include day-to-day decisions about the children’s care, such as what the children eat or wear. If the court decides both parents are to jointly make decisions , then they must consult and try to reach an agreement about major long-term issues.
Shared parental responsibility or joint decision making is not the same as equal parenting time.
If there are no court orders about parental responsibility, parents are encouraged, if is it safe to do so, to consult each other about major long-term issues in relation to the child. Their child/ren’s best interests should be the most important consideration.
Family consultants
During a family law case, the court may order people involved in the case to see a family consultant and for a child impact or family report to be written.
Family consultants are specialists who give advice to the court in family law cases. They may interview the children, the people involved and other significant people in a child’s life. They may spend time with the child and other people involved. Anything said to a family consultant isn’t confidential and can be used in court as evidence.
Parenting orders and family violence or child abuse
If anyone thinks a child is at risk of family violence or child abuse they must tell the court.
They must also tell the court if they’re aware 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 Child Safety, Seniors and Disability Services).
A person or an independent children’s lawyer must tell the court if they are aware of any family violence orders that are in place or have previously been in force .
If the court finds there has been family violence or child abuse, it will make orders to protect the children. 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.
If the court considers children may be at risk in one parent’s care, it can order them to 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.
In situations where each person says different things about the family violence and the court can’t decide who is telling the truth, it may order one person’s time with the children to be supervised.
The court may also appoint an independent children’s lawyer who can investigate the matter further. They can make a recommendation to the court about the children’s best interests.
The court will make sure a family counsellor or a family dispute resolution practitioner gives you information about services and options available to you. If there’s an urgent risk of family violence or child abuse, the court may make a parenting order and direct that you receive information later.
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 or police, to give information to the court that they may have about family violence, child abuse or allegations that this might have occurred.
See family and domestic violence for more information about what to do if there is or has been family violence.
If there has been family violence or child abuse, or you think there is a risk of family violence or child abuse, get legal advice. If you are considering family dispute resolution, you should let the family dispute resolution service know about any family violence or child abuse.
Do I need legal advice?
You may need legal advice if:
- you or your children are at risk of harm
- you disagree about what’s in the child’s best interests
- you’re thinking about signing a parenting plan or consent orders, and before you file consent orders with the court
- you’re going to court to get a parenting order.
Get legal advice
We may give legal advice about making agreements for the arrangements for children.
The following organisations may be able to give legal advice.
Community legal centres give legal advice on a range of topics. Contact them to find out if they can help.
Women's Legal Service gives free legal advice to women on areas of law including domestic violence and family law.
Queensland Law Society can refer you to a specialist private solicitor for advice or representation.
Family Relationship Advice Line gives information about the family law system in Australia.
Who else can help?
These organisations may be able to help. They don’t give legal advice.
Family Relationship Centres give information, referrals, dispute resolution and advice on parenting after separation.
Federal Circuit and Family Court of Australia deals with family law cases. Court forms and information on family court processes are available online.
Department of Child Safety, Seniors and Disability Services investigates reports of harm or suspected child abuse against any child under 18.
DV Connect — gives counselling, information, referral and help including refuge and shelter placement and crisis intervention to people affected by domestic violence. They also manage the Pets in crisis project arranging foster care for pets while people affected by domestic violence are in temporary accommodation.
Mensline (DV Connect) is a free, confidential telephone counselling, referral and support service for men.
Relationships Australia offers a range of men and family relationship services including counselling, family dispute resolution, assistance on relationship and parenting matters and education courses.
Queensland Police can help if you or your children are at risk of harm.
Disclaimer: This content is for general purposes only and not legal advice. If you have a legal problem, please contact us or speak to a lawyer. View our full disclaimer.
Last updated 6 August 2024