Going through a separation or divorce is never easy, and when children are involved, things can get even more complicated. Who will the kids live with? How will decisions about their future be made? These are tough questions, and in New South Wales (NSW), parenting orders are often the legal answer.
If you’re looking to secure custody (now legally referred to as “parental responsibility”) of your children, it’s important to understand your rights, the legal process, and what the courts consider when making decisions. This guide will walk you through it all in a straightforward and practical way.
What Are Parenting Orders?
Parenting orders are legally binding decisions made by the court about a child’s living arrangements, care, and welfare. They determine,
- Who the child lives with (previously known as sole or joint custody)
- How much time the child spends with each parent
- How parental responsibility is shared (who makes major decisions about health, education, and religion)
- Communication between the child and the non-resident parent
These orders are designed to protect the best interests of the child and ensure they have stability and a meaningful relationship with both parents whenever possible.
The Best Interests of the Child
When making parenting orders, the Family Court and Federal Circuit Court prioritise one key factor: the best interests of the child. This includes.
- The child’s safety and protection from harm
- The benefits of having a meaningful relationship with both parents
- The child’s views (depending on their age and maturity)
- The ability of each parent to provide for the child’s needs
- The impact of changes to the child’s routine
- Any history of family violence or abuse
It’s not about who’s the “better” parent—it’s about what’s best for the child.
How to Apply for Parenting Orders in NSW
Step 1: Try to Reach an Agreement
Before heading to court, the law encourages parents to sort things out through Family Dispute Resolution (FDR). This is a form of mediation where a neutral third party helps parents reach an agreement. If an agreement is reached, it can be formalised through consent orders.
If mediation doesn’t work or isn’t suitable (e.g., in cases of family violence), you can apply to the court for parenting orders.
Step 2: Filing an Application
If no agreement is reached, you’ll need to file an Application for Parenting Orders in the Family Court or Federal Circuit Court. This will outline what arrangements you’re seeking and why they are in the child’s best interests.
You may also need to provide an affidavit—a written statement explaining your situation, concerns, and reasons for seeking custody.
Step 3: The Court Process
The court process can take time, and in most cases, interim orders (temporary arrangements) are made until a final decision is reached. During this process, the court may:
- Appoint an Independent Children’s Lawyer (ICL) to represent the child’s interests
- Order psychological or family assessments
- Require parents to attend counselling or parenting programs
Both parents will have the opportunity to present their case, provide evidence, and respond to the other parent’s claims.
Types of Parenting Orders
Parenting orders can cover various arrangements, including:
- Equal shared parental responsibility: Both parents must jointly make major decisions about the child.
- Sole parental responsibility: One parent has the authority to make major decisions.
- Living arrangements and time spent with each parent: Whether the child spends equal time with both parents or lives primarily with one and sees the other on scheduled days.
- Specific issues: Rules about relocation, schooling, medical treatments, and travel.
What If the Other Parent Doesn’t Follow the Orders?
Parenting orders are legally enforceable. If a parent refuses to comply, the other can apply to the court for a contravention order, which may result in penalties, fines, or changes to the existing orders.
However, if there’s a genuine reason for non-compliance such as safety concerns —the court will take this into account.
Can Parenting Orders Be Changed?
Yes, but only in significant circumstances. If there’s been a major change (e.g., relocation, health issues, or safety concerns), you can apply for a variation. However, courts prefer stability, so you’ll need strong reasons to justify any changes.
Tips for a Successful Custody Case
- Focus on the child’s needs: Show that your proposed arrangements prioritise their well-being.
- Encourage a positive relationship with the other parent: Courts prefer solutions that keep both parents involved.
- Document everything: Keep records of communication, financial contributions, and any concerns.
- Follow court procedures: Meet deadlines, submit paperwork correctly, and comply with temporary orders.
- Seek legal advice: A family law solicitor can guide you through the process, help you prepare a strong case, and represent you in court if needed.
Final Thoughts
Getting custody of your children—or securing parenting orders that work for your family—can be an emotional and legal challenge. The key is to focus on the child’s best interests, try to reach agreements outside of court where possible, and seek professional legal advice when needed.
At Dot Legal, our family law solicitors can help you navigate parenting orders with expert guidance, ensuring you achieve the best possible outcome for your children. If you need advice or representation, don’t hesitate to reach out.