After a marriage or de facto relationship ends, it can be challenging to know how to address parenting matters. In Australia, there are a few common avenues to address how children will be cared for by each parent and what each parent’s responsibilities will be, ranging from informal agreements to court orders.

In this article, we’ll look at Parenting Orders, including what they are, how they work, who they are suitable for, and how to organise them. If you have any questions that aren’t answered in this article, please reach out to our team; we are here to help.

What is a Parenting Order?

A Parenting Order is a binding order made by the Court that allows parents to arrange when, where and how they spend time with the children. Under Section 64B(2) of the Family Law Act(cth) 1975 Parenting Orders can stipulate:

Who the children live with
How much time they spend with each parent (and other family members, including grandparents)
Parental responsibility
Parental decision making
How parents communicate
Anything else specific to a family’s circumstances

Tip: You may hear the terms ‘Consent Orders’ and ‘Parenting Orders’ used. The end result is the same legal document, however, Consent Orders are Parenting Orders filed with the court for approval when both parents agree. Parenting Orders are legal orders made about children when parents don’t agree – so the court decides for them.

Are Parenting Orders right for my family?

Parenting Orders may be right for your family if you need a clear, legally enforceable agreement about your child’s care, living arrangements, or parental responsibilities. They are particularly useful when communication is difficult or disputes arise. While informal agreements or Parenting Plans can work for some families, Parenting Orders offer certainty and legal protection if one parent does not follow the agreed terms or if future conflict is likely.

Understanding clauses of Parenting Orders

Parenting orders cover many different aspects of parenting, which are broken down into specific clauses throughout the document. Some orders are very simple and often suitable for parents with a good relationship or less complex needs.

Others can be more extensive and specific, which may be required in more complex dynamics or situations. Below, we’ll look at the main areas that Parenting Orders generally address.

1. Parental responsibility

This is the legal concept under the Family Law Act 1975. It refers to the duties and authority parents have to make decisions about their child’s care, welfare and development. It is a broader, ongoing legal obligation. Parental responsibility is about the right to make decisions and the responsibility to take care of children.

Automatically shared by both parents unless a court orders otherwise.
Exists regardless of whether the parents are together or separated.

2. Decision-making

Decision-making refers to how parents exercise their parental responsibility, particularly around major long-term issues, such as:

Education
Religion
Health care & medical treatment
Living arrangements (especially relocating)
Cultural upbringing

When parents separate, decision-making is generally ‘equal shared decision-making’ – or joint-decision making, which means both parents must consult each other and make joint decisions on major issues. In some circumstances, sole decision-making may be requested or awarded, which means one parent makes the decisions.

3. Living arrangements

Living arrangements refer to where a child lives and when. It may be to spend equal time with each parent (50/50), every weekend, with one parent only, or any arrangement that works for the family.

4. Spending time with

This outlines the times that a child will spend time with a parent outside of the general living arrangements. This section may address birthdays, public holidays, school holidays or any other times that the family wants to include.

5. Communication

Communication outlines both how the children will communicate with parents when apart and how parents will communicate with each other.

Examples are:

The parent with the child/ren will make sure that the child/ren are able to take a call or video call, every Monday, Wednesday and Friday between 6 pm and 7 pm
Parents will communicate via a parenting app or email for non-urgent matters, and by phone call for anything urgent

6. Changeover

Parents will drop the child/ren off at the other parent’s home every Wednesday at 7 pm and ensure they have any items needed for school, sports, ballet, etc, until the next changeover. This may be done in a public place, or children may be collected from school in some cases.

7. Emergency situations

How matters will be handled in an emergency situation.

8. How disagreements will be handled

If disagreements arise about parenting orders, parties are generally expected to attempt Family Dispute Resolution first. Both must make a genuine effort to resolve the issue. If no agreement is reached, court intervention may be necessary.

How are Consent Orders or Parenting Orders made?

Orders can be made by agreement of both parents and handed to the Court for approval, in the form of Consent Orders. In more complex matters, the Court can make the Parenting Orders during a trial if there is a high level of conflict between parents or if parents simply do not agree on how they spend time with children.

Can a Parenting Plan form the basis of Parenting Orders?

Yes, a Parenting Plan can form the basis of Parenting Orders if both parties agree. The court may use its terms to create binding orders, provided the arrangement is in the child’s best interests and both parties consent.

How do co-parents agree on what goes into a Parenting Order?

Co-parents can agree on the terms of a Parenting Order through negotiation, Mediation or Family Dispute Resolution. With the help of a mediator or family lawyer, they can discuss parenting arrangements such as living schedules, decision-making responsibilities and communication. Once an agreement is reached, it can be formalised by applying to the court for consent orders, which make the terms legally binding and enforceable.

The best interests of the child are always paramount

Each set of Parenting Orders is tailored to a specific family’s needs. However, under section 60CC (1) of the Act, the Parenting Orders must be in the best interest of the children.

That is, they must ensure that children have the ability to have a meaningful relationship with both parents and are protected from physical or psychological harm, including abuse, neglect or family violence, under section 60CC(2)(b) of the Act.

How much detail should be included in a parenting order?

Parenting Orders can be as detailed or broad as required, depending on each family issue and requirement. For instance, if one parent has drug or substance abuse issues, a parenting order can stipulate that that parent must undergo clean drug tests before they can spend time with the children. Any time they spend with the children may also need to be supervised.

Other parents may have an excellent co-parenting arrangement where they communicate well with one another. Therefore, a broad set of parenting orders may be more appropriate so that they can co-parent in a flexible manner without worrying about breaching their orders. For instance, parents may need to swap the days they pick up their children from school.

Simple, readable and workable

Parenting Orders need to be simple, readable, and workable as parents will be using them, not lawyers! Clear clauses that state who the child lives with and when the child sees the other parent are useful in clarifying parenting arrangements.

Orders must also be workable to suit the needs of the parents. For instance, the Parenting Orders should clearly state which days and times the parent should spend time with the children and who will pick up and drop off the children. The handover location should be in a convenient spot for both parents, whether this be at one parent’s home or, in the case of high conflict, in a public place, such as a restaurant or shopping centre that is in between both parents.

Understanding the Family Law Act relative to Parenting Orders

FAMILY LAW ACT 1975 – SECT 64B

Meaning of parenting order and related terms

(1) A parenting order is:

(a) an order under this Part (including an order until further order) dealing with a matter mentioned in subsection (2); or

(b) an order under this Part discharging, varying, suspending or reviving an order, or part of an order, described in paragraph (a).

However, a declaration or order under Subdivision E of Division 12 is not a parenting order.

(2) A parenting order may deal with one or more of the following:

(a) the person or persons with whom a child is to live;

(b) the time a child is to spend with another person or other persons;

(d) if 2 or more persons are to share parental responsibility for a child,–the form of consultations those persons are to have with one another about decisions to be made in the exercise of that responsibility;

(e) the communication a child is to have with another person or other persons;

(f) maintenance of a child;

(g) the steps to be taken before an application is made to a court for a variation of the order to take account of the changing needs or circumstances of:

(i) a child to whom the order relates; or

(ii) the parties to the proceedings in which the order is made;

(h) the process to be used for resolving disputes about the terms or operation of the order;

(i) any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.

The person referred to in this subsection may be, or the persons referred to in this subsection may include, either a parent of the child or a person other than the parent of the child (including a grandparent or other relative of the child).

Note: Paragraph (f)–a parenting order cannot deal with the maintenance of a child if the Child Support (Assessment) Act 1989applies.

(3) Without limiting paragraph (2)(c), the order may deal with the allocation of responsibility for making decisions about major long-term issues in relation to the child.

Note 1: See also subsection 61D(3) and section 61DAA in relation to parenting orders dealing with allocation of responsibility for making decisions about major long-term issues.

Note 2: For the definition of long-term issues, see subsection 4(1).

How do we apply for Parenting Orders?

To apply for Parenting Orders, you must file an application with the Federal Circuit and Family Court of Australia. If seeking orders by agreement, you can apply for Consent Orders without attending court. If there’s no agreement, you’ll usually need a certificate from a Family Dispute Resolution practitioner showing an attempt to resolve the issue, unless exemptions apply. Supporting documents, such as affidavits and a parenting plan, may also be required.

Do we need a lawyer to organise our Parenting Orders?

You don’t legally need a lawyer to organise Parenting Orders, but getting legal advice is strongly recommended. A family lawyer can help ensure your agreement is fair, clearly worded and in your child’s best interests. They can also assist with drafting or reviewing documents, applying for consent orders, or representing you if court proceedings are required. Having legal support helps avoid mistakes and ensures the orders are enforceable and appropriate.

What are the costs associated with creating Parenting Orders?

The costs of creating Parenting Orders can vary depending on whether they are made by agreement or through court proceedings. Applying for consent orders usually involves a lower fixed court filing fee and minimal legal costs if both parties agree. If the matter goes to court, costs can increase significantly due to legal representation, document preparation and multiple hearings.

What are interim orders and final orders?

Interim orders are temporary decisions made by the court to address urgent parenting or financial issues while a family law case is ongoing. They provide short-term arrangements, such as where a child will live or who has parental responsibility, until the matter is fully resolved. In many cases, you may not need interim orders.

Final orders are permanent, legally binding decisions made by the court (or agreed to by the parties) that determine long-term arrangements after all evidence has been considered.

Will we need to go to a court hearing for Parenting Orders?

You may not need to attend a court hearing if you and the other parent agree on arrangements and apply for Consent Orders. In this case, the court can approve the orders without a hearing. However, if there is no agreement or if urgent issues arise, such as safety concerns or disputes, a court hearing may be necessary for a Judge to decide on appropriate interim or final parenting orders.

What happens if parents don’t follow Parenting Orders?

If a parent does not follow Parenting Orders without a reasonable excuse, the other parent can apply to the court for enforcement. The court may issue a Contravention Order, which could result in consequences such as makeup time with the child, fines, or, in serious cases, a change in parenting arrangements. It’s essential to seek legal advice if there are ongoing breaches or concerns about the child’s welfare or safety.

Can Parenting Orders be changed?

Yes, parenting orders can be changed if circumstances change significantly, and this affects what is in the child’s best interests. The court carefully considers whether modifying the orders will better support the child’s safety, welfare and development. The focus is always on what arrangement best meets the child’s needs at that time.

How can Avokah Legal help with Parenting Orders?

At Avokah Legal, we believe that less is more, and the easier it is to understand a Parenting Order, the easier it will be to avoid disputes in the future. Please contact us for further information.

Creating Parenting Orders That Work For Your Family