Parenting Orders

When parents separate, one of the most important disputes that they need to address relates to the importance of continuing a relationship between the children or child and the parent who they do not live with on a permanent basis.

The importance of this is highlighted in the Family Law Act 1975 which relates to the rights and interests of all children in Australia. The Act sets out that its object is to ensure that children have the benefit of a meaningful relationship with both of their parents to the maximum extent that is in their best interests and to enable them to "achieve their full potential". The Act also emphasises that there is a need to protect children from any physical or psychological harm from being subjected or exposed to abuse, neglect or family violence.

The Family Law Act also sets out that the principles underlying this objective are, unless it would be contrary to a child's best interests, that:

  • Children have the right to know and be cared for by both their parents. 
  • Children have a right to spend time on a regular basis and communicate on a regular basis with both parents. 
  • That parents jointly share duties and responsibilities concerning the care, welfare and development of their children. 
  • That parents should agree about the parenting of their children 
  • That children have a right to enjoy their culture.

If parents can agree about the parenting of their children, who their children should live with and the time that their children should spend with the other parent, then they may formalise that agreement in several ways through the Family Court.

If, unfortunately, parents cannot agree about the parenting of their children, then an Application can be made to the Local Court, the Federal Circuit Court or the Family Court for its assistance in resolving disputes. Through the Court process, parents will be encouraged to reach their own agreement about the children, however, ultimately if parents are unable to agree, the Court can make Parenting Orders about a child or children. What is now referred to as a "live with" Order is a Parenting Order and the primary interest of such Orders is always the best interest of the child.

Children of a certain age and/or maturity may also be considered by the Court to have the capacity to express a view that should be considered when the Court comes to make an Order with regard to their care.

Child Support

When parents separate, arrangements also need to be made to ensure the child or children remain financially, physically and emotionally supported. This is often in the form of Child Support which is payable to all children in Australia up to the age of 18 years old whose parents are separated, which is set out under the Child Support Act 1989. The non-residing parent may be liable to pay Child Support to the parent who the child or children is ordered to live with. 

If you wish to seek advice on parenting matters and the consequences of separation on children, please contact our office for assistance.


Can I get full custody of my child?

The two main components to a parenting matter are parental responsibility and residence. The concept of custody no longer exists. The allocation of parental responsibility and determination of who will be the residence parent depends solely on the circumstances of your case. The main consideration in making these decisions is what will be in the best interest of the child.

There is an order in place allowing me to spend time with my child but my former partner won’t let me see them. What can I do?

This is a breach of a Court Order and is a serious matter. The best course of action depends on the situation and there are many options available to you. Your former partner may also face possible serious repercussions.

What sort of agreements can we make about arrangements for the children?

You can organise either a Parenting Plan or Consent Orders. Depending on your situation these can be done to suit your personal situation and provide the most suitable arrangement for you and your children.

The children have been living with me since separation and I want to move out of the area. Do I need permission from the other parent?

This depends on whether there is a Court Order and your circumstances. If you are breaching an Order you cannot move and you may require the consent of the other party.

Can I move to a different state?

Until Court Orders are put in place, it is necessary that the parents live close enough to each other so that a relationship can be maintained between the child and both parents. Moving interstate is of course possible after Court Orders are made, but it often requires some compromise and effective communication between the parties so that time between the child and non-residence parent can be facilitated.

When can children decide which parent they want to live with?

There is no prescribed age in the legislation. Children’s views must always be considered but will be given the appropriate weight by the Court depending on their age and maturity.

Do the children have to live with the mother?

This is a question/myth which is commonly misunderstood and is not true. There are various factors which are taken into account by the Court in deciding who the children live with. The paramount consideration is not the parents' rights but ensuring that the best interests of the children are served. Although it is most common that the children do stay with their mother, it is certainly not the law and does not occur in every case.