Guideline 4 - Parenting orders

Guideline 4.1 - assistance for parenting orders

Vulnerable client

Legal Aid Queensland (LAQ) considers that a vulnerable client in a family law matter is an applicant who:

• is involved in a family law matter where allegations of domestic and family violence have been made*,
• has had involvement with a child welfare authority,
• is aged under 25 years old,
• is aged over 65 years old,
• is Aboriginal or Torres Strait Islander,
• lives in a remote location**,
• is homeless***,
• requires the services of an interpreter,
• has a disability or mental illness, or
• has been identified through the LAQ Dispute Resolution process as a person who has a limited ability to negotiate and represent themselves effectively in proceedings.

* Funding in such circumstances would extend to both parties in the matter (subject to other guideline requirements)

** LAQ uses the Australia Bureau of Statistics definition of remote or very remote Australia as defined through the postcodes listed in the 2017 Postcode to 2016 Remoteness Area report.

*** LAQ uses the Australian Bureau of Statistics (ABS) statistical definition of homelessness.

Dispute about a substantial issue

In parenting matters which are proceeding to court, LAQ will consider funding a party to court where there is dispute about a substantial issue concerning:

• the protection of the child from abuse, neglect or family violence*, or
• the denial of a meaningful relationship between a parent and the child, or
• both.

Even if it is determined that there is a dispute about a substantial issue, the applicant must still meet the means test, other relevant guidelines and merits tests.

* For the purposes of this guideline, LAQ defines family violence in accordance with s4AB of the Family Law Act 1975.

Disputes concerning the protection of the child from abuse, neglect or family violence

For the purposes of this guideline, LAQ may consider that there is a parenting dispute about a substantial issue concerning the protection of the child from abuse, neglect or family violence in the following circumstances:

• The applicant for aid is seeking to initiate or respond to proceedings to prevent the child spending time with a person who they allege exposes the child to abuse, neglect or family violence where formal reports have been made to and been investigated by relevant authorities as set out below.
• The applicant for aid is seeking to initiate or respond to proceedings to prevent the child spending time with a person who has been convicted of, or is currently charged with:
  • sexual offences relating to a child
  • a criminal offence relating to the child
  • serious criminal offences where the other parent was the victim.
• The applicant for aid is seeking to initiate or respond to proceedings to prevent the child spending time with a person who has been the subject of a report/s of alleged harm that has been substantiated. The applicant for aid has also been identified by a child welfare authority as a person willing and able to act protectively and an order is required in order to prevent further child welfare involvement.
• There is a risk of serious psychological harm as the child has been in the primary care of the applicant for aid for a significant period relative to the child’s age and:
  • the other party has removed the child from their care and it does not appear to be in the child’s best interests, or
  • the other party has initiated proceedings and if successful will result in a change to where the child lives and it does not appear to be in the child’s best interests.
• There is an immediate risk to the child’s physical welfare and / or risk of serious psychological harm as the other party has removed a baby that is still being breastfed and it does not appear to be in the child’s best interests.
• There is an immediate risk to the child’s physical welfare and / or risk of serious psychological harm as the other party has made threats or has taken actions to remove a child from Australia and the other party has:
  • a visa, passport or citizenship in another country which would allow them to live in another country, and
  • the child’s passport in their possession, and
  • the financial means available to them to purchase an airfare ticket or travel by other means, and
  • no ties to Australia.
• There is an immediate risk to the child’s physical welfare and / or risk of serious psychological harm as the other party has made threats to remove a child to a remote geographical region of Australia and it does not appear to be in the child’s best interests.
• There is an immediate risk to the child’s physical welfare and / or serious risk of psychological harm as the other party is denying the child access to essential medical treatment.
• The child lives with the applicant for aid who is not the child’s parent and they do not have the necessary parental responsibility to protect the child from physical and / or serious psychological harm such as:
  • preventing an immediate risk of the child being removed which would put them at risk of abuse, neglect or family violence,
  • an inability to obtain medical treatment that is essential, or
  • an inability to enrol the child into school.
• The applicant for aid has primary care of the child and is wishing to relocate and relocation is required to protect the child from abuse, neglect or family violence.
• The applicant for aid has a protection order (temporary or final) in place and they are currently denying the respondent to the protection order time with the child due to domestic and family violence concerns, and:
  • the child is named as a protected person on the protection order, and
  • they are responding to an application that if successful will mean the child spending unsupervised time or living with the respondent to the protection order.
• The applicant for aid has left their place of residence due to domestic and family violence and is currently denying the other party time with the child due to the domestic and family violence concerns, and:
  • an application for a protection order has been filed and the application seeks the child to be named on the order, or
  • evidence can be provided to substantiate the domestic and family violence allegations, and
  • they are responding to an application that if successful will mean the child spending unsupervised time or living with the respondent to the protection order.

For the purposes of this guideline, LAQ does not consider there is a parenting dispute about a substantial issue concerning the protection of the child from abuse, neglect or family violence in the following examples:

• The applicant for aid has not made allegations of child abuse, neglect or family violence.
• The applicant for aid has made allegations of child abuse, neglect or family violence and no report has been made to either the police or child welfare authority.
• A child welfare authority has investigated a report/s of alleged harm and has:
  • found the report/s to be unsubstantiated, or
  • found the report/s to be substantiated and are protecting the child’s safety or welfare and have not provided their support for the applicant for aid to obtain a parenting order in the Family Law Courts.
• The other party has made threats to remove the child from Australia but does not have access to the child’s passport or ability to obtain a passport without consent.
• There is no immediate risk of the removal of the child to a remote geographical region of Australia as the other party has no historical or cultural ties within a remote community.
• The applicant for aid with whom the child lives is wishing to relocate however the relocation is not required to protect the child from abuse, neglect or family violence.
• The applicant for aid is seeking the child to be returned to their care when a shared care arrangement has broken down and there is no risk of abuse, neglect or family violence.

Disputes concerning the denial of a meaningful relationship between a parent and the child

For the purposes of this guideline, LAQ may consider there is a dispute about a substantial issue concerning the denial of a meaningful relationship between a parent and the child in the following circumstances:

• The parent applying for legal aid has been denied any time or communication with the child, and
  • the parent has made all reasonable attempts to secure time and communication, or
  • the parent cannot attempt to secure time and communication due to the conditions of a current protection order, and
  • there appears to be no good reason for the parent to be denied any time and communication with the child.
• The parent applying for legal aid is being offered time with, or spending time / communicating with the child under overly restrictive conditions and there appears to be no good reason for restrictions such as:
  • during the day only
  • limited to specific time/location/activity
  • supervised only
  • by telephone only
  • holiday time only
  • on days or at times where the applicant cannot practically attend (work hours etc.)
• The parent applying for legal aid is being offered time with, or spending time / communicating with the child which is insufficient to allow the parent to have a meaningful relationship with the child.
• The other party who has primary care of the child is seeking to relocate to another country, state or a significant distance within the same state and if successful will prevent a meaningful relationship between the parent applying for legal aid and the child.

For the purposes of this guideline, LAQ does not consider there is a dispute about a substantial issue concerning the denial of a meaningful relationship between a parent and the child in the following examples:

• The applicant for aid is not a parent of a child (i.e. step parents, kinship carers, former foster parents, grandparents, siblings, extended family etc.). See guideline 4.3 assistance to parties who are not parents.
• The child lives with the other party and is located a significant distance away from the applicant for aid. The applicant for aid is seeking more time with the child however due to the distance, the time the applicant currently receives is sufficient to allow the child and the parent to have a meaningful relationship.
• The applicant for aid is subject to an order that prevents any contact with the child.
• The parties are in agreement as to where the child should live and how much time the child should spend with the other parent and are seeking orders to formalise these arrangements.
• The proposals from the parties for parenting arrangements provide for the child to have a meaningful relationship with both parents even though the amount of time is not agreed.
• Both parents are currently spending a sufficient amount of time with the child to allow a meaningful relationship to occur.
• The applicant for aid who is being denied time and communication with the child is incarcerated.
• The child has made a decision that they wish to have less time with the applicant for aid which may curtail a meaningful relationship with the child however due to their age and maturity they have sufficient capacity to make such a decision and it is therefore likely that a court decision would reflect their views.
• The applicant for aid has a meaningful relationship with the child and the dispute relates to how much time the applicant for aid spends with the child during school holidays.
• The issue relates to matters such as:
  • who pays for:
    • school fees
    • uniforms
    • books
    • travel
    • extracurricular activities
    • clothing
    • hair cuts
    • food
  • whether a child attends a place of worship
  • what clothes and toys are kept with each party and who washes them
  • where the changeover is to occur
  • what time the child goes to bed
  • what the child eats
  • what activities the child does
  • routine vaccinations/immunisations* (*as published by the Australian Government , Department of Health and Ageing in the National Immunisation Program Schedule)

Interpretation of meaningful relationship between a parent and a child

A meaningful relationship or meaningful involvement is one which is important, significant and valuable to the child. What must be considered is the benefit to the child of having a meaningful relationship with the applicant for aid. A meaningful relationship is about the quality of time rather than the amount of time.

Guideline 4.2 - assistance for applications to discharge or vary parenting arrangements

Vulnerable client

Same as guideline 4.1

Dispute about a substantial issue

Same as guideline 4.1

There has been a material change in circumstances since the court order was made

Legal aid is not available for applications to discharge or vary parenting arrangements within two years of final orders being made (whether by court order or by consent).

LAQ will consider funding fresh proceedings relating to children who are the subject of existing orders only in certain circumstances. The principle is known as “the rule in Rice and Asplund” (Rice and Asplund (1978) 6 Fam LR 570) and is based on an understanding that it will only be in a child’s best interests to expose them to further proceedings if there has been a significant change in circumstances since the making of the order. 

These applications will be considered on a case by case basis and having regard to the following:

• The existing orders, reasons for judgment, evidence and/or circumstances of the family at the time of the making of the orders (e.g. transcript of proceedings, exhibits, affidavit material)
• The new orders that the applicant seeks and the evidence which they seek to place before the court which demonstrates a significant change in circumstances and warrants the discharge or variation of an order and the exposure of a child to further litigation
• Whether the evidence of significant change in circumstances addresses the concerns and findings held by the court or experts at the time of the making of the existing orders
• Whether the evidence about change in circumstances was available at the time of the making of the existing orders, and if so, why the evidence was not presented to the court.
• The change is more significant than merely what has occurred due to the passage of time
• There is a real likelihood that as a result of the change in circumstances there would be a significant change to the existing orders and not just minor adjustments to parenting arrangements
• Whether the applicant caused the change in circumstances

Examples of changed circumstances below are not an exhaustive list and all applications will be considered by LAQ on a case by case basis:

• Recovery from prior mental illness by a parent who has limited or no time with the child/ren
• Stabilising of the life of a parent who has limited or no time with the child/ren
• Failure of a party to disclose an intention to take the children out of Australia, such an intention having been formed at the time of the original hearing
• Evidence which highlights information that was not raised at the original hearing and the reasons for not doing so (eg: domestic violence, medical issue)

The court application is imperative

LAQ will consider that a court application is imperative when there are issues relating to the child’s safety or welfare as outlined in the interpretation of a dispute about a substantial issue for court applications.

Guideline 4.3 - assistance to parties who are not parents

Vulnerable client

Same as guideline 4.1

Disputes about a substantial issue

Disputes concerning the protection of the child from abuse, neglect or family violence

Same as guideline 4.1

Disputes concerning the denial of a meaningful relationship between a party who is not a parent and a child

For the purposes of this guideline, LAQ may consider there is a dispute about a substantial issue concerning the denial of a meaningful relationship between a person who is not a parent and child in the following circumstances:

• An applicant for legal aid who is not a parent has been denied any time or communication with the child, and:
  • the party has made all reasonable attempts to secure time and communication, or
  • the party cannot attempt to secure time and communication due to the conditions of a current protection order, and
  • there appears to be no good reason for the party to be denied any time and communication with the child.
• An applicant for legal aid who is not a parent is being offered time with, or spending time / communication with the child under overly restrictive conditions and there appears to be no good reason for restrictions such as:
  • supervised only
  • by telephone only
  • on days or at times where the applicant for legal aid cannot practically attend (work hours etc.)

For the purposes of this guideline, LAQ does not consider there is a dispute about a substantial issue concerning the denial of a meaningful relationship between a person who is not a parent and a child when:

• An applicant for legal aid who is not a parent is spending time with or communicating with the child without overly restrictive conditions.

The party is significant to the care, welfare and development of the child

For the purposes of this guideline, LAQ considers a party who is not a parent to be significant to the care, welfare and development of a child where:

• the child has previously lived in the primary care of that party, or
• the child has previously lived in the household of that party, or
• the child would have no contact with the maternal / paternal family if they did not have a relationship with the party.

LAQ considers it to be in the child's best interest

LAQ will take into account s60cc of the Family Law Act when considering the best interests of the child.

Last updated 25 March 2022