Family Law Blog

What will the Family Court consider when making Parenting Orders?

Posted by Karina Ralston on 29 Jul 2014

There are a lot of misconceptions about what parents are “entitled” to when it comes to custody arrangements for children.  Some have the approach that the father should spend time with the child every alternate weekend and some have the perspective that it should be 50/50.

The response by family lawyers when asked by a parent what they are “entitled” to is simply, that there is no definite answer.  The legislation provides that any Court who is to make a determination about the arrangements for a child must take into account, as the paramount consideration, the best interests of the child.  

The Court must take into account what they call “primary considerations”, being the two main factors in determining what are the best interests.  These are:

1. The benefit to the child of a meaningful relationship with each of their parents;
2. The need to protect the child from abuse and family violence.  

Once they have taken these two factors into account, they must also consider any additional factors including the following:

1. The nature of the relationship the child has with each of the children’s parents and other persons;
2. The child’s views (with weight to be given to those views depending upon the age of the child);
3. The extent to which each parent has taken an active role in the child’s life;
4. The extent that each parent has maintained the child;
5. The likely effect on the child due to any changes in the child’s current circumstances or arrangements;
6. Whether the child is Aboriginal or Torres Strait Islander;
7. Other factors as deemed relevant.

If the Court orders equal shared parental responsibility then the Court must consider an equal time arrangement.  Realistically, if the children are very young, the parties have a high conflict relationship or the parties live far apart, the Court is unlikely to make an Order for equal time.  Once the Court has made a determination that equal time is not reasonably practical, the Court will look to other scenarios, including whether the parent that the child is not living with should spend substantial and significant time with the child (being, in summary, time during the week, weekends and school holidays).

Ultimately, there is no set formula for how much time a child should spend with each parent. The possible arrangements to be made for a child after their parents separate are endless.  The Court has ultimate discretion and will take into consideration all factors they believe to be relevant. in making arrangements that are in the best interest of the child.

If you need advice on parenting orders please contact our experienced family lawyers: