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Custody or parenting disputes over issues such as who the children should live with, how often they get to spend time with the other parent, and which parent should make the decisions in relation to the children, naturally follow the breakdown of a relationship. During these difficult times, it is important to minimise disruption to the children’s lives and avoid exposing them to conflict. The following is a brief summary of how parenting orders are determine and made in the best interests of the children in Australian Family Courts. The process is more complex than what is outlined below and you are invited to contact KF Lawyers if you wish to speak to an experienced family lawyer about parenting orders.


What are parenting orders?

Parenting orders serve the purpose of defining parental responsibility, who the children should live with, how they should spend time with the other parent, and other matters to help regulate the parenting relationship between parents who are no longer in a relationship with each other, but ought to remain involved in their children’s lives. Parents who have just separated often experience ongoing disagreements which can get in the way of the care, welfare and development of their children. A parenting order helps to avoid further disagreements in future about parenting the children and therefore regulate the parenting relationship.


How are parenting orders made?

Parenting orders can be made by consent or by a judge who hears an Initiating Application. Before an Initiating Application for parenting orders can be filed in the Federal Circuit Court of Family Court of Australia, the parties must make a genuine effort to participate in mediation or Family Dispute Resolution (FDR).


If mediation or FDR is unsuccessful, the mediator will provide a Section 60I certificate which will need to be filed with the Initiating Application. The Court understands there are some situations where mediation is not possible, especially if there is an urgent application for parenting orders or of the relationship is characterised by domestic violence. In those situations, the Court will require you to file an Affidavit for Non-filing of an FDR certificate setting out the reasons why you could not attend mediation or participate in FDR.


In addition to filing an Initiating Application and Section 60I Certificate, the Court will also require an Affidavit in support of your application, and a completed Notice of Risk form.


When determining applications for parenting orders, and hearing custody disputes, the Court is guided by the paramount consideration that parenting orders need to be in the best interests of the child or children. Section 60CA of the Family Law Act 1975 provides “In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.”

How does the Court determine what is in the best interests of the children?

Australian Family Courts recognise that not every family is the same and different children have different needs. Section 60CC of the Family Law Act 1975 provides a framework in which the Court can determine what is in the best interests of the Children. This section provides two primary considerations and fourteen additional considerations to guide the Court’s determination.

The primary considerations are listed under section 60CC(2) of the Family Law Act 1975, and they are consistent with the object of the Act set out in section 60B(1)(a) and (b).  A copy of subsection 60CC(2) is extracted below:

“(2)  The primary considerations are:

(a)  the benefit to the child of having a meaningful relationship with both  of the child's parents; and

(b)  the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.”

Subsection 60CC(2A) provides that paragraph (2)(b) above is to be given greater weight, when balancing the two competing considerations. In other words, it is more important for the Court to have regard to the need to protect the children from psychological and physical harm and abuse, as opposed to considering the benefit of the child having a meaningful with both parents. If there is evidence that one parent is a risk of harm to the children, the Court will continue to promote a relationship between the children and the parent deemed to be a risk, but with added measures to protect the child, for example, by imposing supervision.

The additional considerations that the Court may take into account in determining what is in the best interests of the children are listed in subsection 60CC(3) of the Family Law Act 1975. This subsection is extracted below:

(3)  Additional considerations are:

(a)  any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;

(b)  the nature of the relationship of the child with:

(i)  each of the child's parents; and

(ii)  other persons (including any grandparent or other relative of the child);

(c)  the extent to which each of the child's parents has taken, or failed to take, the opportunity:

(i)  to participate in making decisions about major long-term issues in relation to the child; and

(ii)  to spend time with the child; and

(iii)  to communicate with the child;

(ca)  the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;

(d)  the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

(i)  either of his or her parents; or

(ii)  any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living.

(e)  the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

(f)  the capacity of:

(i)  each of the child's parents; and

(ii)  any other person (including any grandparent or other relative of the child),

to provide for the needs of the child, including emotional and intellectual needs;

(g)  the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

(h)  if the child is an Aboriginal child or a Torres Strait Islander child:

(i)  the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

(ii)  the likely impact any proposed parenting order under this Part will have on that right;

(i)  the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

(j)  any family violence involving the child or a member of the child's family;

(k)  if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:

(i)  the nature of the order;

(ii)  the circumstances in which the order was made;

(iii)  any evidence admitted in proceedings for the order;

(iv)  any findings made by the court in, or in proceedings for, the order;

(v)  any other relevant matter;

(l)  whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

(m)  any other fact or circumstance that the court thinks is relevant.”

As each and every family is unique, it is important to obtain specific and tailored legal advice about how the above factors would affect your case and what parenting orders might be in the best interests of your children.


In most parenting disputes that go before the Court, an Independent Children’s Lawyer may be appointed to act in the best interests of your children and a Family Consultant may be appointed to prepare a Family Report providing recommendations for parenting orders. Even without Court proceedings, it is possible to use the same legislative framework for parenting orders in FDR and mediation to reach agreement on final parenting orders.

At KF Lawyers, we understand the importance of helping families manage parenting arrangements to protect their children. We also appreciate the value of carefully drafted parenting orders that reflect your family’s unique situation so that your future parenting arrangements are sustainable and manageable. If you are seeking parenting orders, please contact KF Lawyers to arrange a free initial consultation and speak with an experienced family lawyer.

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