Child Custody Laws Australia

In Australia, Parenting Orders can be made by the Federal Circuit and Family Court of Australia. When a court makes Parenting Orders, its paramount concern is the best interests of the children. This is stipulated in the Family Law Act 1975. The court must consider various factors including: 

• The arrangements which would promote the safety for the child and any person who has care of the child; 
• Any views expressed by the child; 
• The developmental, psychological, emotional and cultural needs of the child; 
• The capacity of each person who has or is proposed to have parental responsibility for the child to provide for their needs; 
• The benefit of the child to have a relationship with the parents and any other person who is significant to the child wherever safe to do so; and 
• Any other relevant factors in relation to the circumstances of the child. 

Who decides who has access to children?

Parenting Orders can be made by consent. This occurs when parents are agreed about what arrangements need to be put in place and wish to formalise the agreement by having it made into a court order.

Parenting orders can also be made after litigation. This may involve one or more interim hearings and sometimes a final hearing. Disputed parenting proceedings can be ongoing for months and sometimes years. For this and other reasons, it is always advisable for parties to a parenting matter to make all efforts to resolve the situation without resorting to litigation. 

Consent Orders Children

When parenting orders are made by consent, the parents file a draft of the orders they want the court to make with the registry of the Federal Circuit and Family Court of Australia. A judicial officer looks carefully at the proposed orders and if satisfied that they are in the children’s best interests, signs off on them. The parties will then receive a signed and sealed copy of the orders, which will remain in force on a permanent basis. 

In some circumstances, the court may refuse to make orders even when the parties are in agreement about the orders. This may occur when the arrangements that are being proposed are contrary to the children’s interests or place them at risk of neglect, abuse or other harm.

Parenting Orders after litigation

When one parent has made an application for parenting orders and it has been opposed by the other parent, the court will make the orders that it considers are in the children’s best interests. It will do this after hearing evidence and submissions from both parents. In some cases, the court may also order a Family Report to be prepared by a court-appointed psychologist or social worker to provide more insight into the family situation. This will involve the parents and children being interviewed about their lives, wishes, plans and needs.

When parenting litigation is on foot, the court will usually make interim orders, setting out the parenting arrangements to be followed – including who had access to children and who the children live with -until the matter is finalised.

A parenting matter concludes when the court makes final Parenting Orders.

Breach of orders children

Parenting Orders typically provide for who children will live with and who they will spend time with. Sometimes, a parent will fail to comply with a Parenting Order. This may occur for a number of reasons, including changes in circumstances making compliance more difficult or even impossible, making a mistake about what they are required to do under the Parenting Order or deliberately disobeying the orders.  

When a party to a Parenting Order believes the other party to be in breach of the order, they must attempt to resolve the matter through Family Law Dispute Resolution unless the circumstances of the case make it inappropriate to do so, in which case an exemption must be sought. 

If the situation cannot be remedied through Family Dispute Resolution, the aggrieved party may file a Contravention Application with the Federal Circuit and Family Court of Australia. 

Consequences of breaching an order

If the court is satisfied that a breach occurred, it must consider whether there was a reasonable excuse for the breach. This may be that the party did not understand the obligations imposed by the orders or that their actions were necessary to protect a person’s safety.

If the court finds there has been a breach without a reasonable excuse it can impose various penalties, including a fine, a period of imprisonment or a good behaviour bond or community service order. It can also order the party who is at fault to pay the other party’s legal fees and/or to compensate them for the breach (for example, by allowing the other party extra access to children to make up for time together that did not occur).