All court orders about children are now called parenting orders. Any person concerned with the care, welfare or development of a child can apply for a parenting order. Parenting orders can specify people other than parents who are to spend time with and communicate with the child, including grandparents and other family members.
The court can put special conditions in an order regarding where and when time is spent with the child. For example, it can make the visits supervised if it thinks it is necessary, or it can say where handover of children must happen.
While a court can order that a parent be allowed to spend time with a child, it cannot make a parent see a child. Other orders can be made giving one parent responsibility for aspects of the care, welfare and development of the child, such as education and medical treatment.
How does the court decide?
When a court is making a parenting order, the Family Law Act requires it to regard the best interests of the child as the most important consideration. The Family Law Act says that:
- both parents are responsible for the care and welfare of their children until the children reach 18
- arrangements which involve shared responsibilities and cooperation between the parents are in the best interests of the child.
In deciding what is in the best interests of a child, the primary consideration of a Family Law Court is:
- the benefit to children of meaningful relationships with both parents; and
- the need to protect children from physical or psychological harm and from being subjected or exposed to abuse, neglect or family violence.
In addition, it will also consider such things as:
- the views of the child, depending on the maturity and level of understanding of the child
- the child’s relationship with each parent and other people, including grandparents and other relatives
- the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the child and the other parent
- the likely effect on the child of changed circumstances, including separation from a parent or person with whom the child has been living, including a grandparent or other relatives
- the practical difficulty and expense of a child spending time with and communicating with a parent
- each parent’s ability (and that of any other person) to provide for the child’s needs
- the maturity, sex, lifestyle and background of the child and of the child’s parents, and any other characteristics of the child that the court thinks are relevant
- the right of an Aboriginal or Torres Strait Islander child to enjoy his or her culture and the impact a proposed parenting order may have on that right
- the attitude of each parent to the child and to the responsibilities of parenthood
- any family violence involving the child or a member of the child’s family
- any family violence order that applies to the child or a member of the child’s family
- whether it would be preferable to make the order that would be least likely to lead to further court applications and hearings in relation to the child, and
- any other fact or circumstance that the court thinks is relevant.
The court will not hear from the child directly, instead it will get information from other witnesses about what a child may want. To help it decide what should be done, the court can ask a family consultant to prepare a family report.
Sometimes, the court will order that a child have separate legal representation. An Independent Children’s Lawyer (ICL) is a lawyer who works out what is in the child’s best interests and explains it to the court.
SHARED PARENTAL RESPONSIBILITY
Unless a court says that it is not in the child’s best interests, both parents have equal shared parental responsibility. This means parents should consult each other about major issues such as education, health and religion.
Equal shared parental responsibility is not the same as a child spending equal time with both parents. However, where a court order provides for equal shared parental responsibility then the court must consider the child spending equal time with both parents. This depends on whether it is in the child’s best interests and whether such an arrangement is reasonably practicable.
If equal time is not possible in the particular circumstances, the court must then consider whether ‘substantial and significant time’ is in the child’s best interests. ‘Substantial and significant time’ means that the time the child spends with a parent includes weekdays, weekends and holidays so that they are able to spend time together in routine daily activities in addition to sporting events, holidays and special occasions.
In making an order, the behaviour of the parents before and after separation may be relevant. Because the court deals with every matter individually, no one can tell you exactly what the court will decide in your case. For this reason it is not much help to compare your case with others you may have heard about. At Eales & Mackenzie we can help you understand what is best for you and your child or children.
APPLYING FOR PARENTING ORDERS
To apply to the court for parenting orders, you need to complete an application form and a supporting affidavit. The affidavit is your statement of what has happened and why you want the court to make the orders you are seeking in your application form. Eales & Mackenzie family lawyers in Melbourne can assist you in preparing these documents in the most efficient manner possible.
WHAT HAPPENS WHEN YOU APPLY FOR A PARENTING ORDER?
Initially, the Court will make interim (temporary) orders that will apply until final orders are made. After interim orders have been made, the Court will then put the case in the court list to prepare for trial and to determine if the case can settle beforehand.
If the matter is not capable of settlement, the Court will list the case for a final hearing (called a trial) before a Judge or Magistrate who will decide what is best for your children. Trials about children are conducted in a less adversarial and confrontational manner than trials about property. The aim of such trials it to keep the focus on the children while adopting a flexible approach to help parents reach agreement.
It can take a long time to proceed from interim orders to the commencement of a trial. If your case is urgent and there are special circumstances, the court may agree to put your case before others on the waiting list. If you have a case that requires urgent attention, please contact our family lawyers at Eales & Mackenzie who generally will see you on an urgent basis with little or no waiting period.
WHAT ORDERS CAN YOU APPLY FOR?
A parenting order may deal with one or more of the following:
- the person or people with whom a child is to live
- the time a child is to spend with another person or other persons
- the allocation of parental responsibility for a child and, if two or more people are to share parental responsibility for a child, how they are to consult with one another about decisions concerning the child
- how the child will communicate with other persons
- child maintenance (for those children not covered by the Child Support Scheme)
- the steps to be taken before an application is made to a court for a change to the order
- the process to be used for resolving disputes about the terms or operation of the order, and
- any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.
RELOCATION OF CHILDREN
Even if there is no court order in place, a parent should get legal advice before moving a child to another region or State without the agreement of the other parent.
The court has the power to order that a child not be removed or be returned if it is in the best interests of the child to remain in the local area. If a parent has already removed the child, the court can order that the child be returned and place a “stop” on that child’s name on a special “Watch List” at the airport. These applications are complicated and must be done carefully.
Please contact our family lawyers at Eales & Mackenzie for more information about this complicated legal area before you move or make a decision to move with your children which could cause heartache and inconvenience to all concerned.
COMPLYING WITH ORDERS ABOUT CHILDREN
Court orders are not optional. You must take all reasonable steps to follow the order. For example, if there is a court order that your child spends time with the other parent, you must do everything you can to encourage the child to spend time with the other parent. If someone is not following an order, you should get legal advice from Eales & Mackenzie about your options.
A court can only penalise someone for breaching a parenting order if another person makes a contravention application alleging the person is not complying with the order. If a court finds a person has breached a parenting order without reasonable excuse, it may impose a penalty.
Note that ‘reasonable excuse’ has a particular meaning in the Family Law Act. The court will consider whether the excuse for a contravention is reasonable according to law.
Depending on the particulars of the case and the type of contravention, a court has the power to:
- order attendance at a post separation parenting program
- compensate for time lost with a child as a result of the contravention
- require the person to enter into a bond
- order the person to pay all or some of the legal costs of the other parties
- order that the person pay compensation for reasonable expenses lost as a result of the contravention
- require the person to participate in community service
- order that a fine be paid
- order imprisonment
A court may at any time order the parents to see a Family Consultant (a court counsellor). Family consultants are psychologists or social workers who specialise in child and family issues after separation and divorce.
Family Consultants can:
- help you resolve your dispute
- tell the court about your case
- write a report to the court about your family, and
- advise the court about various family services.