The most important issue for separated parents is to ensure that the future parenting arrangements for their children are in the children’s best interests and are reasonably practical.

What does the court consider when making an Order?

When a Court makes an order for parenting matters, the primary consideration is what is in the best interest of the child. The Family Law Act provides that where possible parents should have Equal Shared Parental Responsibility for the children, meaning:

  • Both parents are responsible for the care and welfare of the children;
  • Arrangements for parental responsibilities (such as educational and medical decisions) should be shared by the parties.

Separation, divorce or remarriage do not change these responsibilities of the parents.

What is in the child's best interests?

In determining what is in the child/children’s best interests, the main considerations are:

  • The benefit of the child having a meaningful relationship with both parents; and
  • The need to protect the children from any risk of harm (either physical or psychological) and Courts regard this as the most important thing to consider.
The Family Law Act sets out a number of other matters that are taken into account if relevant to your family’s situation:
  • Any views expressed by the child (depending on their maturity and level of understanding);
  • The nature of the child’s relationship with each parent and other people (including grandparents and other relatives);
  • The willingness of the parents to encourage and facilitate a relationship between the child and other parent;
  • Any likely effect on the child because of changed circumstances;
  • Any practical difficulty and expense of the child spending time with and/or communicating with a parent;
  • The parent’s ability to provide for the child’s needs;
  • The maturity, sex, lifestyle and background of the child and parents;
  • The right of the child to enjoy his/her culture;
  • The attitude of both parents to the child and responsibilities of parenting;
  • Any family violence and family violence orders that apply to the child or a member of the child’s family.

When can you file in court?

Before you can file proceedings in Court for parenting matters the Family Law Act requires parents to attempt family dispute resolution. This is designed to keep you out of Court if you can reach agreement yourselves. Details about the court procedures and requirements for dispute resolution are contained in the Compulsory Family Dispute Resolution Fact Sheet contained on the Family Court website. Places such as Relationships Australia and the Family Relationships Centre offer dispute resolution services for parents wanting to resolve parenting disputes. If you are unable to reach agreement at the dispute resolution, the practitioner will provide you with a certificate (60I Certificate) to allow you to commence proceedings in Court. You are not required to attempt dispute resolution if there is an urgent reason to commence proceedings (such as one party leaving town with the child, or a serious risk to the child or there has been violence in your relationship), you can apply to the Court to commence proceedings without the requirement of a dispute resolution certificate. Parenting after the breakdown of your relationship takes effort and there are services available to help you work towards a better future for your children. Services that provide support include:

Parenting issues can be resolved in two ways:

  1. By the parties reaching agreement about the arrangements for the children and parental responsibilities (either before or after dispute resolution) and signing Consent Orders which are then approved by the Court; or

  2. If the parties are unable to reach agreement, the Court will determine orders about the arrangements for the child and parental responsibilities.