Parenting Orders in Australia

What Are Parenting Orders?

Parenting orders are legally binding orders made by the Federal Circuit and Family Court of Australia (or a state court with family law jurisdiction) that set out the arrangements for children after their parents separate. These orders cover where children will live, how much time they spend with each parent, and how parents will make decisions about their children's lives.

Under the Family Law Act 1975, parenting orders can address any aspect of a child's care, welfare, and development. They replace older terminology like "custody" and "access" with more child-focused concepts of "parental responsibility" and "time with" each parent.

What parenting orders can cover

• Living arrangements — who the child lives with and the time spent at each home.
• Parental responsibility — who makes major decisions about the child's education, health, and religion.
• Communication — phone calls, video chats, and other contact between parent and child.
• Location restrictions — whether a parent can relocate with the child and passport arrangements.

Types of Parenting Orders

Parenting orders can be categorised in several ways based on how they are obtained and their duration. Understanding these distinctions helps you choose the most appropriate pathway for your situation.

Consent orders

When both parents agree on arrangements, they can apply jointly for consent orders. The court reviews the proposed orders to ensure they are in the child's best interests, but there is no hearing or trial required. Consent orders are the fastest option, carry lower cost, and are fully enforceable.

Contested orders

When parents cannot agree, either party can file an Initiating Application seeking parenting orders. The court will manage the case through procedural hearings, possibly a family report, and ultimately a final hearing if settlement is not reached. Contested matters typically take 12–24 months or longer and attract the highest costs.

Interim orders

Temporary orders made while the case is ongoing, designed to maintain stability or address urgent issues until final orders can be made. These are not prejudicial to the final outcome but establish arrangements in the meantime. Interim orders are fully enforceable.

Final orders

Permanent orders that remain in force until the child turns 18 (or is otherwise emancipated) unless varied by a later court order. These resolve the parenting dispute and set the long-term arrangements. Final orders carry full enforcement and can be varied if circumstances significantly change.

Who Can Apply for Parenting Orders

While parents are the most common applicants, the Family Law Act allows a broader range of people to seek parenting orders in appropriate circumstances. Section 65C sets out who has standing to apply.

People who can apply

• Either parent — biological parents have automatic standing to apply for parenting orders regardless of whether they were married, in a de facto relationship, or never in a relationship.
• Grandparents — grandparents can apply for orders about spending time with grandchildren. In some cases, grandparents may seek more significant orders including living arrangements.
• Any person concerned with care, welfare, or development — section 65C allows anyone concerned with a child's welfare to apply. This includes step-parents, other relatives, or even close family friends in appropriate circumstances.
• The child (through an ICL) — in some cases, an Independent Children's Lawyer (ICL) may be appointed to represent the child's interests directly in proceedings.

The Best Interests Principle

Section 60CA establishes that the best interests of the child must be the paramount consideration in all parenting decisions. This is the foundational principle of Australian family law.

The section 60CC considerations

From 6 May 2024, the Family Law Amendment Act 2023 replaced the old "two primary considerations plus additional factors" structure with a single list of six considerations the court must weigh to decide what is in a child's best interests. They are not ranked — but the safety consideration is listed first and, in practice, carries the most weight.

• Safety — what arrangements best promote the safety of the child and the people who care for them, including safety from family violence, abuse, neglect or other harm.
• The child's views — any views the child has expressed, considered in light of their maturity and level of understanding.
• The child's needs — their developmental, psychological, emotional and cultural needs.
• Each carer's capacity — the capacity of each person who would care for the child to provide for those needs.
• Benefit of relationships — the benefit to the child of being able to have a relationship with their parents, and other people significant to them, where it is safe to do so.
• Anything else relevant — any other circumstances relevant to the particular child.

The court must also consider any history of family violence, abuse or neglect, and any family violence order that applies to the child or a member of their family. For an Aboriginal or Torres Strait Islander child, the court must consider the child's right to enjoy their culture.

Equal Shared Parental Responsibility

Until 6 May 2024, Section 61DA created a presumption that equal shared parental responsibility was in a child's best interests. That presumption was repealed by the Family Law Amendment Act 2023 — there is now no presumption; a court decides parental responsibility on the child's best interests and may order joint long-term decision-making where appropriate. This remains one of the most misunderstood concepts in family law.

What it means

Equal shared parental responsibility means parents must jointly make decisions about major long-term issues affecting the child — principally education (which school, type of schooling, extracurriculars), health (medical treatment, vaccinations, mental health care), and religion (religious upbringing and significant ceremonies).

What it does not mean

• Not equal time. Equal shared parental responsibility is about decision-making, not time allocation. A child can live primarily with one parent while both parents share decision-making responsibility.
• Not veto power. Parents must consult and make a genuine effort to reach agreement, but if they cannot agree, either can apply to the court for a specific decision.

Parenting Plans vs Court Orders

Not all parenting arrangements need to be court orders. Understanding the difference between parenting plans and various types of court orders helps you choose the right approach.

The Application Process

Applying for parenting orders involves several steps and documents. Understanding the process helps you prepare effectively and avoid delays.

Step-by-step process

1. Attempt Family Dispute Resolution (FDR). You must attend FDR and obtain a Section 60I certificate before filing (unless exempt). This typically takes 2–6 weeks.
2. Complete and file your application. File an Initiating Application (with Notice of Risk if applicable), your affidavit, and the Section 60I certificate. Pay the filing fee.
3. Serve the other party. Have the documents served on the other party at least 28 days before the first court date. File an Affidavit of Service confirming service.
4. Attend the first court date. A procedural hearing where the Registrar checks service, discusses the issues, and sets a timetable for the case.
5. Case management and family report. The court may order a family report. You'll attend further case management events and possibly a conciliation conference.
6. Final hearing (if necessary). If settlement is not reached, the matter proceeds to a final hearing where a Judge hears evidence and makes orders.

Key forms

• Initiating Application — the main application form.
• Notice of Risk — required if there are child abuse or family violence concerns.
• Affidavit — your sworn evidence in support of the application.
• Response to Initiating Application — if responding to someone else's application.

Family Dispute Resolution

Before applying to court for parenting orders, you must attempt Family Dispute Resolution (FDR) unless you qualify for an exemption. This is a form of mediation specifically designed for family law matters.

How FDR works

• Accredited practitioner. Sessions are conducted by accredited Family Dispute Resolution Practitioners (FDRPs) who are trained mediators.
• Confidential. Discussions are confidential and cannot be used as evidence in court (with limited exceptions for child safety disclosures).
• Certificate required. You receive a Section 60I certificate which must be filed with any court application.

Exemptions from FDR

You may not need to attempt FDR if:

• There has been family violence or child abuse.
• The matter is urgent (e.g., risk of child removal).
• The other party cannot be located or is overseas.
• There are contravention proceedings.

Family Reports

Family reports are prepared by court-appointed family consultants (usually psychologists or social workers) and are often the most influential evidence in parenting matters. Understanding what they assess helps you engage constructively with the process.

What family consultants assess

• Parent–child observations — direct observation of how each parent interacts with the child, including warmth, responsiveness, and communication style.
• Child interviews — age-appropriate discussions with children about their experiences, feelings, and (for older children) their wishes — without pressure.
• Parent interviews — individual sessions exploring parenting approach, relationship history, concerns about the other parent, and proposals for future arrangements.
• Collateral information — information from schools, doctors, therapists, and other professionals involved with the family.

Interim vs Final Orders

Understanding the difference between interim and final orders helps you plan your strategy and manage expectations throughout the court process.

Interim orders

• Temporary orders while the case proceeds.
• Maintain stability pending the final hearing.
• Can address urgent issues quickly.
• Not prejudicial to the final outcome.
• Enforceable like any court order.

Final orders

• Permanent orders resolving the dispute.
• Continue until the child turns 18.
• Made after full consideration of evidence.
• Can be varied if circumstances change significantly.
• Full enforcement available.

Enforcing Parenting Orders

When a parent breaches parenting orders, the other parent can apply for enforcement. The court takes contraventions seriously, though it also considers whether the breach was reasonable in the circumstances.

Types of breaches

• Withholding time — not making the child available for scheduled time.
• Late returns — consistently returning children late from visits.
• Unilateral decisions — making major decisions without consulting the other parent.
• Relocation — moving with the child without consent or court approval.

Potential consequences

• Make-up time for missed contact.
• Variation of orders (potentially favouring the other parent).
• Compensation for costs and expenses incurred.
• Community service orders.
• Bonds with conditions.
• Imprisonment (in serious cases).

Varying Parenting Orders

Parenting orders are not set in stone. When circumstances change significantly, either parent can apply to vary the orders. However, the court requires a genuine change in circumstances to justify reopening the matter.

Common reasons for variation

• Child's changing needs — as children grow, their needs change. A schedule suitable for a toddler may not work for a school-aged child or teenager.
• Relocation — if a parent needs to relocate for work, family support, or other reasons, the arrangements may need to change.
• New relationships or children — re-partnering or new half-siblings may necessitate changes to existing arrangements.
• Child's expressed wishes — as children mature, their views carry more weight and may justify variation.
• Safety concerns — new evidence of risk or changed circumstances affecting child safety.

Frequently asked questions