Parenting Orders

In the making of any Parenting Orders (including Residency Orders, Contact Orders or Specific Issues Orders) the court must regard the best interests of the child as the paramount consideration.
  • A number of factors are set out in the Family Law Act 1975 (Cth) which help the court to determine what is in a child's best interest. Some of these include:
    • The wishes expressed by the child;
    • The nature of the relationship of the child with each of the child's parents and with other persons;
    • The likely effect of any changes to the child's circumstances, including the likely effect on the child of any separation from parents or any other child or person;
    • The practical difficulty and expense of a child having contact with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relationships and direct contact with both parents on a regular basis;
    • The capacity of each parent or any other person to provide for the needs of the child, including emotional and intellectual needs;
    • The child's maturity, sex and background (including any need to maintain a connection with a lifestyle, culture and tradition of Aboriginal peoples or Torres Strait Islanders) and any other characteristics of the child that the Court thinks are relevant;
    • The need to protect the child from physical or psychological harm caused or that may be caused by being subjected or exposed to abuse, ill-treatment, violence or other behaviour or being directly or indirectly exposed to abuse, ill-treatment, violence or other behaviour that is directed towards or may affect another person;
    • The attitude towards the child and to the responsibilities of parenthood demonstrated by each of the child's parents;
    • Any family violence involving the child or a member of the child's family;
    • Any family violence order that applies to the child or a member of the child's family;
    • Whether it would be preferable to make the order that would be least likely to lead to further proceedings in relation to the child;
    • Any other fact or circumstance that the court thinks is relevant.
  • In many disputes concerning children some of the above factors are more relevant than others depending upon the particular facts of the case, so it is important to consult with a lawyer prior to raising these issues with a court.
  • It is vital to remember that the court has a wide discretion to make the order that they think is the most proper and that is in the best interests of the child.
  • Parenting Orders are never final so if you or your partner wish to change the orders made you can do so by agreement but if an agreement cannot be reached then you must satisfy the court that a change in circumstances has occurred that justifies the court changing the orders already made (speak to your lawyer about this).
This subject is also discussed in our Law Blog.

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