When children are involved in a separation or divorce, a court may make parenting orders in relation to time each parent spends with their child. These orders are made when the parents have made a genuine effort to engage in family dispute resolution or pre-action measures (such as counselling or mediation), and have made reasonable efforts to communicate with the other party, but still cannot come to an agreement regarding the child arrangements.

Parental responsibility and parenting orders

Parental responsibility encompasses all of the duties, powers, responsibilities and authorities which parents have in relation to their children by law. This includes decision making powers relating to important matters such as medical care or education (as discussed in our article here). The Family Law Act 1975 (Cth) s 61DA requires the application of a presumption of shared parental responsibility to be made in the best interests of the child. This presumption exists unless there are reasonable grounds for believing a parent has engaged in family violence, or abuse of the child or another child who was a member of the parent’s family. However, shared parental responsibility does not mean each parent is entitled to shared or equal time with the children.

Parenting orders set out the specific parenting arrangements for children, and may consider:

  • How much time the children spend with each parent;
  • Who the children reside with until the age of 18;
  • How the children will communicate or how much time the child will spend, with parents or other people who they will not live with (for example, as discussed in relation to grandparents in another article); and
  • Any other aspects of the care, welfare or development of the children.

When making parenting orders, the court’s paramount consideration is on ensuring that the orders made are in the best interests of the child. With this in mind, the court can decide to make orders for equal time spent with each parent, substantial or significant time with either parent, or any other arrangement that they see fit.

The Family Law Act 1975 (Cth) s 60CC(2) sets out the primary considerations involved in determining a child’s best interests for a parenting order:

  1. The benefit to the child of having a meaningful relationship with both parents; and
  2. The need to protect the child from physical or psychological harm, and from being subjected or exposed to, abuse, neglect or family violence.

Perspectives of children and parenting orders

There are also numerous additional considerations (within s 60CC(3)) which the court may use in determining parenting orders, including any views expressed by the child and any factors that the court thinks are relevant to the weight that should be given to the child’s views. The significance of the child’s perspective will be affected by the degree of maturity and understanding of the circumstances that the child is assessed as having. This perspective can be shared by the child themselves, if deemed appropriate, or by an independent person, such as a social worker or psychologist, in the form of a Family Report.

A child’s perspective must be balanced against other factors, including their insight and maturity, attitude towards their parents or the perspectives of other stakeholders. This ensures that the pressure placed on the child in influencing this decision does not become overwhelming, which could be detrimental for their emotional development in the already stressful time of their parents’ separation.

That being said, courts are generally more reluctant to make parenting orders relating to children who are 15 years and older as they are seen to be able to make their own decisions relating to parenting arrangements. Even where parenting orders are made, they are rarely enforced in practice as by this age the child can generally effectively choose for themselves whether the parenting orders should apply to them. However, until the child turns 18, the court may still intervene where the child is an unsafe or inappropriate situation and there is no age under 18 years old where the court will solely consider the child’s perspective when making a parenting order. Parenting orders are only effective until the child turns 18 years old, gets married themselves, or forms a de facto relationship.

How Etheringtons Solicitors can help

A solicitor at Etheringtons Solicitors can provide clarification of the relevant law on parenting orders and its relation to your individual circumstances. Furthermore, if Etheringtons Solicitors can assist with family law and separation matters more generally, please contact one of our experienced solicitors on (02) 9963 9800 or via our contact form here.