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Working out how to divorce is difficult enough, however it is also a difficult time for any children that are involved. Often their routine is disrupted or removed entirely, only to be replaced with two distinctly separate environments and rules. A common issue between parties after separation in child custody law is that one may want the children to engage in after school tutors and spend more time with the extended family, whereas the other party may think that weekend and after school sport is just as sufficient to develop social skills and facilitate learning. What is crucial to remember that under Australian law, there are not particular set of child custody rights. What instead is paramount to the Court is the best interests of the children involved.  Given this, the Court would often encourage parents to make either parenting orders or a parenting plan, to instill a routine for children to focus on and help assist all parties moving forward. A parenting plan is not legally enforceable, whereas the parenting orders are. The parenting orders ensure that once both parties agree on a routine for the children, there are legal consequences for contravening those orders.

As was the issue in Carlton v Carlton [2014], a parenting order was put in place to ensure that the children spent enough time with both parties. However after a period of time, the children refused to leave the mother’s car at changeover to see the father and said words to the effect: “We don’t feel like seeing you”. Rather than encourage the children to step out of the car or communicate with the father to deal with this problem, the mother remained silent, would wind the window up or allow the children to wind the window up, and drove the children away. The Court found that this was tantamount to encouraging the behaviour, and observed that the mother may have been behind the behaviour starting. As a result, the mother was placed on a good behaviour bond of $1000 for a period of 12 months for contravening the orders.

In this case, there was no reasonable excuse for the mother to prevent the children seeing the father, because there was a lack of dialogue between all parties involved, as to why the children were feeling that way, and possible actions to change their feelings.  Given this, it is crucial that all parties to a parenting order understand their obligations, as it is a legally binding document.

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To decide whether you need a parenting order or parenting plan, or to seek custody advice overall, contact one of our accredited Family Law Specialists today.

For advice about child custody contact us on 1800 300 170 or email us at

