How parenting orders work
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How does family law work for children?
The law covers care and welfare arrangements for children, between their parents and other carers, for example, grandparents or other extended family members. It covers all children, whether their parents were married or not.
The focus of the law is on the duties and responsibilities of parents for their children and the rights of the children. The law encourages parents and other people interested in the welfare of children to try to agree on arrangements for them.
If you are able to make decisions equally, it is best if you and your former partner decide together what to do about the children, for example, where the children will live, how they will be financially supported and how they will maintain a relationship with both parents and other people important to them.
In making your decisions, you should look at what is in the best interests of the children. A Family Relationship Centre, Legal Aid Queensland, or other family dispute resolution service may be able to help you and your ex-partner reach agreement on these issues, as well as offering services or referrals aimed at improving the relationship between you.
If there is family violence, it may not be possible to negotiate with the other parent. You can contact specialist family violence services to help you. Legal Aid Queensland, Family Relationship Centre or the Family Relationship Advice Line can refer you to specialist family violence services in your area.
Sometimes your local state welfare department could be involved with your children, for example because of claims of neglect or child abuse. If there is a case in your local childrens court, the family law courts will not usually make a decision about a family law case until the childrens court case has finished.
What is a parenting order?
The court can make a parenting order about children, which sets out each person's responsibilities. An order can set out:
- where the children live
- the amount of time the children spend with each parent and other people
- how parental responsibility is to be shared by each parent
- if there are more than two people sharing parental responsibility, how each person will communicate with each other about these decisions
- communications between the children and other persons
- the maintenance of the children
- the process that is to be used if there are disagreements later about the content or operation of the order
- the process to be used to try and sort out any disagreement about the order before an application is made to the court to change the order
- any other relevant matter.
Your responsibilities as a parent (parental responsibilities) do not stop if you separate, divorce or find a new partner. The court's main concern is the children.
Parenting orders can be made through the court with the agreement of both parents (called consent orders), or the court can make an order after a trial or hearing.
A trial or hearing is where the judge or federal magistrate makes a decision after hearing evidence from everyone involved. Trials are held in the Family Court of Australia and hearings are held in the Federal Magistrates Court of Australia.
What must the court consider when making a parenting order?
When the court is making a parenting order, it is required to presume that it is in the best interests of the children for the parents to have equal shared parental responsibility. Presume is another way of saying a starting point that the court will begin with.
If there has been violence or child abuse by a parent or a person who lives with the parent, this does not apply. This includes abuse of any child within the families of those people. Equal shared parental responsibility means that both parents share major long term decision making concerning the children.
Major long term decisions include the children's education, religious and cultural observance, medical matters and where the children live. It does not include day to day decisions such as what the children eat or wear.
If the court finds that equal shared parental responsibility is in the best interests of the children, it must then consider whether it is reasonably practical and in the best interests of the children for the children to spend equal time with each parent or significant and substantial time with each parent.
When deciding whether an arrangement is reasonably practical the court will look at how far apart you and the other parent live, and how each of you would be able to spend equal or substantial and significant time with the children.
The court will look at each parents' ability to communicate and sort out difficulties that might happen in parenting arrangements, with the other.
The court will also look at the impact on the children of equal or substantial and significant time with each parent, and any other things the court thinks relevant.
Substantial and significant time has a legal meaning. It involves your children spending both weekdays, weekends and holidays with each parent and the involvement of you and your ex-partner in the children's daily routine.
It also includes each parent being able to spend special occasions of significance to both the children and the parent, with the children. This could include, for example, your children's birthday or the other parent's graduation ceremony.
The court will look at the following issues when deciding if an arrangement is reasonably practical:
- how far apart you and your ex-partner live (and other people involved)
- you and your ex-partner's ability to provide shared care and how each of you can communicate and sort out difficulties with each other
- the impact of equal or substantial and significant time on the children, and
- any other matter the court thinks relevant.
The law is changing
The law is changing in the area of parenting orders and dispute resolution. Everyone involved in an application for a parenting order must now follow procedures to make a genuine effort to sort out the dispute before starting their case, in any of the family law courts. From 1 July 2006 you must first try family dispute resolution as part of the courts 'pre-action' procedures.
From 1 July 2007, if you apply for a parenting order (and you or any person has not previously applied to a court for an order for the child/ren) you must also include with your application a certificate from a family dispute resolution practitioner. The certificate will say that you have been to or tried to go to family dispute resolution (but the other person did not wish to go), or that in the opinion of the practitioner it would not be appropriate for you to participate. A certificate is valid for 12 months from the date of mediation
Other steps include notifying other people involved in your application of your intention to start court proceedings, and advising them of the issues that you are disputing.
There are exceptions to these rules such as where there is family violence, child abuse (or the risk of these) and in situations of urgency. The changes to the law in this area do not provide grounds (reasons) for you to apply to change or stop parenting orders made before these new laws began.
Family violence and parenting orders
The certificate will say that you have been to or tried to go to family dispute resolution (but the other person did not wish to go), or that in the opinion of the practitioner it would not be appropriate for you to go to dispute resolution.
If there has been family violence or child abuse or if you feel yours or the children's safety is at risk, you do not have to go to dispute resolution before applying for a parenting order.
You can make an application to the court first, but the court must be satisfied that there has been child abuse or family violence or a risk of these for you not to include the certificate.
There are other exceptions such as urgency.The court must believe that your fear or apprehension for your wellbeing or safety is reasonable. The court will consider whether it is reasonable for a person in the shoes of the individual to fear or have an apprehension of violence.
How are parenting plans different from parenting orders?
A parenting plan is a written agreement between parents (and others if needed) that sets out arrangements for the care of children.
If a plan was registered with the Family Court of Australia before 14 January 2004 it will have the same legal effect as court orders. If a plan was made after that time and there are no court orders in place it is not legally enforceable (but a court will look at the most recent parenting plan if you apply for orders later).
The court will also look at how each parent has fulfilled their responsibilities towards the children, which may include the terms set out in the parenting plan.
Parenting plans can also be made into consent orders. Consent orders are orders made by the court where both parents agree. They have the same legal effect as other court orders.
Acknowledgement - Prepared using fact sheets which are copyright to the Commonwealth of Australia and National Legal Aid.