A Guide to Parenting Orders

Given the importance of parenting arrangements and the health and welfare of children following a family breakdown, the family law system in Australia encourages families, wherever possible, to resolve their parenting arrangements without the intervention of the Court.

This means that parents are required to participate in compulsory family dispute resolution before applying to a Court for Orders concerning their children. The only situation in which family dispute resolution is not compulsory is in cases where there has been abuse of a child by one of the parents, or if there has been family violence and there is a potential safety issue involved.

In some cases, separating parents may not be able to reach an agreement through family dispute resolution and the Court will be required to make Orders. In this event, the Court can make decisions concerning the following:

• Parental responsibility – how the day-to-day decisions concerning the education, health and welfare of children should be made;
• Which parent a child should live with;
• How much time a child should spend with the other parent;
• How a child should communicate with a parent if they are not living with them; and
• Specific issues such as whether a child should have a passport or which school a child should attend.

Once decisions have been reached concerning these issues, Court Orders are made that must be complied with.

Parenting Orders are usually very clear and specific. They may even include details of the dates and times that children will spend with each parent, or they may require one of the parents to do something such as authorise a school to release information to the other parent.

Regardless of what the Orders comprise, it is vital that they be followed and serious consequences apply for noncompliance. Non-compliance with Court Orders can result in bonds, fines and even imprisonment in serious circumstances. If you think that you are likely to have problems complying with a parenting order it is very important that you seek legal advice about your options.

What factors does the Court consider when making Parenting Orders?

When making Parenting Orders, the Court must think about what is in the best interests of the child and ensure that they are safe from physical and psychological harm.

The primary considerations for the Court are:

• The benefit to the child of having a meaningful relationship with both of the child’s parents; and
• The need to protect the child from physical or psychological harm, and from being subjected to, or exposed to, abuse, neglect or family violence.

Greater weight will be placed on the second point above following recent amendments to the legislation.

Additional considerations for the Court include:

• Any views expressed by the child;
• The nature of the child’s relationship with each parent and other significant persons;
• The extent to which each of the child’s parents has taken, or failed to take, the opportunity to be involved with the child including spending time with the child and participating in decision-making relating to the child;
• The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
• The likely effect of any change in the child’s circumstances;
• The practical difficulties and expense of a child spending time and communicating with a parent;
• The capacity of each parent to provide for the child’s needs;
• The maturity, sex, lifestyle and background (including culture and traditions) of the child;
• If the child is an Aboriginal child or Torres Strait Islander child;
• The attitude to the child and the responsibilities of parenthood demonstrated by each of the child’s parents; and,
• Any family violence involving the child or a member of the child’s family.

The Court is always required to balance the need for children to have a relationship with both parents against any potential risk that may be caused by facilitating that relationship

What is parental responsibility?

Parental responsibility refers to all the duties, powers, responsibilities and authority which parents have in relation to their children. Unless a Court makes an Order to the contrary, each of the parents of a child has parental responsibility for the child. However, a Court can make Orders about specific issues, such as giving one parent sole parental responsibility for decisions concerning a child’s education.

If there is an Order for equal shared parental responsibility then the parents must consult with each other regarding important decisions such as education, religious upbringing and major medical treatment.

Do children have to spend equal time with each parent?

If a Court makes an Order that a child’s parents are to have equal shared parental responsibility for the child, it must also consider whether it would be in the best interests of the child, and reasonably practicable, for the child to spend equal time with each parent. It is not stated in the Act that children must spend equal time with each parent. The Court will base its decision on the particular circumstances of a family and how the arrangement would work. In the majority of matters, it is

not in the best interests of the child to have equal time with both parents, if the parents are in conflict with one another.

If the Court does not make an Order for equal shared parental responsibility then it does not have to consider ordering that the child spend equal time with each parent.

Substantial and significant time – what does this mean?

If it is not practical for the child to spend equal time with each parent, the Court can also make an Order for them to spend ‘substantial and significant time’ with one of the parents. When an Order is made for this, it will ensure that the time the child spends with the parent will include both week-days and days that fall on weekends and holidays.

The aim of this is to ensure that the time the child spends with the parent allows the parent to be involved in the child’s daily routine, as well as being involved in special occasions and events that are of significance to either the child or the parent.

In some cases, an Order for either equal time, or substantial and significant time might not be in the best interest of the child or might not be practicable, for example if parents live far away from each other. In these kinds of situations, the Court can make whatever specific Orders it thinks will be best regarding the time a child will spend with each parent or other significant person.

In some rare circumstances, the Court may be of the view that a child or children should have no contact with one parent. This is very rare and you should seek legal advice if this is a consideration in your matter.

For more information on Parenting Orders, contact the Lamrocks Family Law Team now.

Call 02 4731 5688 or email reception@lamrocks.com.au