Parenting orders may be obtained by any person concerned with the care, welfare and development of the children.
Parenting orders are usually resolved by agreement. If parties reach an agreement then they should obtain legal advice about whether to prepare a parenting plan or consent orders.
If the parties are unable to reach an agreement, then parties are able to engage Alternative Dispute Resolution or ADR to assist the parties reach an agreement.
If the parties have completed ADR and are still unable to reach an agreement about parenting orders, then they can apply to the Family Courts for parenting orders.
Parenting orders can be made by the family court that deal with a range of matters concerning children as follows:
- 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;
- the form of consultations those persons are to have with one another about decisions to be made in the exercise of that responsibility;
- the communication a child is to have with another person or other persons;
- maintenance of a child;
- the process to be used for resolving disputes about the terms or operation of the order;
- any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.
When making a parenting order the Family Courts regard the best of children as the paramount consideration.
In making parenting orders the object of the Family Courts is to promote the bests of children by:
- ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
- protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
- ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
- ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles used by the Family Courts are as follows:
- children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
- children have a right to spend time on a regular basis with, and communicate on a regular basis with, both parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
- parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
- parents should agree about the future parenting of their children; and
- children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
To decide what is in children’s best interests, the courts must consider the primary and secondary considerations.
The primary considerations are defined as follows:
- The children having a meaningful relationship with both parents.
- The need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The secondary considerations include as follows:
- The views expressed by the children.
- The nature of the relationship with both parents and others.
- The willingness of parents to facilitate a close relationship.
- The likely effect of changes and separation from parents.
- The practical difficulty and expense.
- The capacity of parents to provide for the needs, intellectual and emotional.
- The attitude of parents to the children and the responsibilities of parenthood.
- Whether there has been any family violence.
The family court must now follow a clearly defined pathway in coming to a decision to make parenting orders as follows:
- Deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
- If the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests
- If the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the primary or secondary considerations or impracticable;
- If equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the primary and secondary considerations or impracticable
- If neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the court that are in the best interests of the child, as a result of consideration of one or more of the primary or secondary considerations.
- If the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the primary or secondary consideration.
- Even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.