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All families are different, and when making arrangements for children or applying for a parenting order, it’s important to make sure the arrangements are practical and in the children’s best interests.
When making a parenting order, the court must consider what’s in the children’s best interests . The court will presume it’s in the children’s best interests for parents to have equal shared parental responsibility, unless there has been child abuse or family violence. Equal shared parental responsibility is not the same as equal parenting time.
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 primary (most important) and additional (other) considerations.
The primary considerations are:
The need to protect a child from physical and psychological harm, including family violence and abuse, will come first ahead of all other considerations.
The additional considerations are:
The court can also look at the:
When making parenting orders, the court doesn’t usually hear directly from children, although it can. Children don’t 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.
When making parenting orders, the court will presume it’s in the children’s best interests for the parents to have equal shared parental responsibility, unless there has been child abuse or family violence by a parent or a person who lives with the parent. Other evidence may also convince the court equal shared parental responsibility isn’t in the children’s best interests.
Equal shared parental responsibility means both parents share decision making for major long-term issues about the children.
This includes making decisions about the children’s:
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 have equal shared parental responsibility, then they must try to reach an agreement about major long-term decisions.
Equal shared parental responsibility isn’t the same as equal parenting time.
If the court decides you have equal shared parental responsibility, they must also consider whether it’s practical and in the children’s best interests 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 spending time with children at special events such as birthdays and school concerts.
When deciding whether an arrangement is practical, the court will look at:
During a family law case, the court may order the people involved in the case to see a family consultant and for a 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.
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 Communities, Child Safety and Disability Services).
A person or an independent children’s lawyer must tell the court if they are aware of any family violence orders.
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) 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 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.
You may need legal advice if:
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.
These organisations may be able to help. They don’t give legal advice.
Family Relationship Centres gives information, referrals, dispute resolution and advice on parenting after separation.
Family Court deals with family law cases. Court forms and information on family court processes are available online.
Department of Communities (Child Safety Services) investigates reports of harm or suspected child abuse against any child under 18.
Domestic and Family Violence Court Assistance Services gives information and help about domestic violence and applications in some courts in Queensland. Court assistance workers can also help with applications for Legal Aid and referrals to other services.
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.
Men and Family Relationship Counselling Service has a range of services including domestic violence prevention counselling and help for men who have had police contact around domestic violence issues.
Queensland Police can help if you or your children are at risk of harm.
Last updated 30 July 2020