Steps to Getting a Parenting Order

Parenting cases – the best interests of the child

The Family Law Act

Options to resolve disputes

Reaching agreement through dispute resolution – what next What is a parenting plan? What are consent orders?

How do you apply for consent orders?

If you can’t agree on arrangements What are orders?

What orders can you apply for? Who can apply for a parenting order? When can you apply for a parenting order? How do you apply for a parenting order? Is there a filing fee for parenting order applications? What happens when you apply for a parenting order?

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Parenting cases – the best interests of the child

 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 makes it clear that each parent has parental responsibility for each of their children until aged 18. This is not affected by such things as separation or remarriage. Parents must also use this principle when making parenting plans.

Courts make orders about parental responsibilities only if the parents cannot agree about the arrangements for their children.

Courts can also approve and make consent orders to reflect an agreement reached between the parties at any time during the court process. Each of these types of orders are known as parenting orders.

Follow the website link  to Family Relationships Online for a copy of the above fact sheets or call the Family Relationships Advice Line on 1800 050 321.

The Family Law Act

The Act makes clear that:

bullet both parents are responsible for the care and welfare of their children until the children reach 18, and
bullet arrangements which involve shared responsibilities and cooperation between the parents are in the best interests of the child.

See Section 61DA of the Act for the detail.

Two tiers of consideration

In deciding what is in the best interest of a child, the Act requires a court to take into account two tiers of considerations - primary considerations and additional considerations:

Primary considerations:

bulletthe benefit to children of meaningful relationships with both parents
bulletthe need to protect children from physical or psychological harm (from being subjected or exposed to abuse, neglect or family violence).

Additional considerations:

bulletthe child’s views and factors that might affect those views, such as the child’s maturity and level of understanding
bulletthe child’s relationship with each parent and other people, including grandparents and other relatives
bulletthe willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the child and the other parent
bulletthe 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
bulletthe practical difficulty and expense of a child spending time with and communicating with a parent
bullet each parent’s ability (and that of any other person) to provide for the child’s needs
bulletthe maturity, sex, lifestyle and background of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
bulletthe right of an Aboriginal and Torres Strait Islander child to enjoy his or her culture and the impact a proposed parenting order may have on that right
bulletthe attitude of each parent to the child and to the responsibilities of parenthood
bulletany family violence involving the child or a member of the child’s family
bulletany family violence order that applies to the child or a member of the child’s family, if:
- the order is a final order, or
- the making of the order was contested by a person
bullet 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
bulletany other fact or circumstance that the court thinks is relevant.

A court must consider the extent to which each parent has or has not previously met their parental responsibilities, in particular:

bullet taken the opportunity to:
- participate in decision-making about major long-term issues about the child
- spend time with the child
bullet communicate with the child, and has:
- met their obligations to maintain the child, and
- facilitated (or not) the other parent’s involvement in these aspects of the child’s life.

If the child’s parents have separated, a court must consider events and circumstances since the separation.

You can read the law about these topics in Section 60CA and Section 60CC of the Family Law Act 1975.

Fact Sheets from the Attorney-General’s Department include information on new concepts in family law:

bullet equal shared parental responsibility
bullet time with parents

See also Section 64B on the law about parenting orders made by a court, and Section 65DAA which is about how a court is to consider a child spending equal time or substantial and significant time with each parent in certain circumstances

Options to resolve disputes

Many people successfully work out arrangements for children without going to court.

Before you apply to a court you must make a genuine effor to resolve the matter by family dispute resolution.

A number of options are available and, in the case of disagreements over children, changes to the Family Law Act 1975 in 2006 phase in requirements for parties to attend family dispute resolution before they apply for parenting orders.

Dispute resolution in parenting disputes

If your application to the court is for a parenting order, then you must provide a certificate with your application to the Court. This requirement applies even if you have preexisting orders in relation to the child that is the subject of the current application.

A court will not hear an application for a parenting order unless a certificate from an accredited family dispute resolution practitioner is filed with the application.

In certain circumstances the court may grant you an exemption from the requirement to file a certificate.

For more information on compulsory family dispute resolution call the Family Relationship Advice Line on 1800 050 321 or go to Family Relationships online

Reaching agreement through dispute resolution – what next

If you agree on arrangements

You do not have to go to court about the arrangements for your children after separation. If you and your former partner agree on the future arrangements, you can:

bullet make a parenting plan, or
bullet obtain consent orders approved by a court.

If you want more information about the services available to help parents trying to reach agreement, you can read more about options to resolve disputes by going to the Family Law Principles section of the Family Law website.

You should seek legal advice when considering which approach is best for you.

What is a parenting plan?

A parenting plan is a written agreement that sets out parenting arrangements for children. Because it is worked out and agreed jointly, you and your former partner do not need to go to court.

Unless a court orders otherwise, you and your former partner can agree to change a parenting order by entering into a parenting plan.

A parenting plan is not a legally enforceable agreement. It is different from a parenting order, which is made by a court. For more information on how the Courts are required to respond on parenting issues, view the Attorney-General's fact sheet 'Parenting plans' visit Family Relationships Online . 

You should seek legal advice when considering the alternative approaches.

What are consent orders?

A consent order is a written agreement that is approved by a court. A consent order can cover parenting arrangements for children ( a 'parenting order') as well as financial arrangements such as property and maintenance

Consent orders have the same legal force as if they had been made by a judicial officer after a court hearing. It is a good idea to get legal advice about any proposed consent orders.

You and your former partner can apply for consent orders to be made without going to court. For more information or to get a Consent Orders Kit go to the ‘Forms’ section of the family law website, call 1300 352 000 or visit your nearest family law registry.


How do you apply for consent orders?

Using the Family Court's Consent Orders kit, you ask the Court to make 'consent orders' in the terms of your agreement. Your agreement may include information about the following:

bullet whether the parents are to have equal shared parental responsibilities or specify the division of parental responsibilities between them
bullet whether the children will spend equal time with each parent or substantial and significant time with a parent and specify details of how the child will spend time with each parent (see Section 65DAA of the Family Law Act for what is meant by substantial or significant time)
bulletthe time a child will spend with a grandparent or other relative
bulletthe communication a child will have with another parent or person
bulletif two or more persons share parental responsibilities, the form of consultation required between the persons
bulletany aspect of the care, welfare and development of the child, including education, health, religion and cultural aspects, and
bullet child maintenance for children not covered by the Child Support (Assessment) Act. If you are unsure, contact the Child Support Agency on 13 12 72 or www.csa.gov.au.

Once you have completed the form in the consent orders kit, file it with the family law registry nearest you by post or in person. There is no need for you to attend court. However, the Court must be satisfied that the orders you ask for are in the best interests of the child. You can read more about the best interests of a child by going to the Family Law Principles section of the family law website.

There is a filing fee to apply for Consent Orders. For more information on fees, please see the Fees Brochure on the Family Law Courts website.

For more information or to get a Consent Orders Kit go to 'Forms' section of the Family Laws website, call 1300 352 000 or visit your nearest family law registry.

You cannot directly apply for consent orders in the Federal Circuit Court. However, if you already have a case in that Court and you reach agreement, orders can be made.

If you can’t agree on arrangements

Parental responsibility and parenting orders

The Family Law Act makes it clear that each parent has parental responsibility for each of their children until aged 18. Parental responsibility is not affected by changes in the parents' relationship; for example, if you separate or remarry.

Parental responsibility means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children (see sections 61B to 61DB of the Family Law Act for details).

Courts make orders about parental responsibilities only if the parents cannot agree about the arrangements for their children. Courts can also approve and make consent orders to reflect an agreement reached between parties at any time during the court process. Each of these types of orders are known as parenting orders.

For more information about the law and courts’ responsibilities under the law, read the best interests of a child by going to the Family Law Principles section of the family law website.

Before you apply to a Court

You must make a genuine effort to resolve the matter by family dispute resolution.

What are orders?

Court orders are the way the decisions or judgments of judicial officers are described. They can include:

bulletan order made after a hearing by a judicial officer, or
bulletan order made after parties who have reached their own agreement have applied to a court for consent orders. Consent orders, if they become a formal court order, have the same status as if the order had been made after a hearing by a judicial officer.

In general terms, orders in family law can include a decree, a decision, a declaration and a judgment.

When an order is made, each person bound by the order must follow it.

What orders can you apply for?

Section 64B of the Family Law Act sets out that a parenting order may deal with one or more of the following:

bulletthe person or people with whom a child is to live
bulletthe time a child is to spend with another person or other persons
bulletthe 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 to be made in the exercise of that responsibility
bullethow the child will communicate with another person or other persons
bullet child maintenance (providing for the financial support of a child who is not subject to the provisions of the Child Support Assessment Act)
bulletthe steps to be taken before an application is made to a court for a variation of the order (to take account of the changing needs or circumstances of a child or the parties)
bulletthe process to be used for resolving disputes about the terms or operation of the order, and
bulletany aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.

You should read Section 64B for the full detail, including the meaning of ‘person’ or ‘persons’ – it may mean either parent and other people, such as a grandparent or other relative of the child.

Who can apply for a parenting order?

A parenting order may be applied for by:

bullet either or both parents of the child
bulletthe child
bulleta grandparent, or
bulletany other person concerned with the care, welfare or development of the child.

When can you apply for a parenting order?

You may apply for a parenting order only after you have attempted to resolve the matter with the other parent or parents, either on your own or with assistance. See the information earlier on this page under the heading 'What you must do before you apply to the Court?' about the requirements for parties to use dispute resolution services in disputes about children.

If you are unable to resolve the matter (or an exception applies to you), you can seek parenting orders from a court.

You should get legal advice before deciding what to do. A lawyer can help you understand your legal rights and responsibilities, and explain how the law applies to your case. A lawyer can also help you reach an agreement with the other party without having to go to court.

How do you apply for a parenting order?

You can apply to the Court most appropriate for your case.

The Family Law Courts comprise the Federal Circuit Court and the Family Court of Australia. The courts share jurisdiction in all family law matters and you can apply to either court.

The Family Court deals with more complex matters. These may include, for example if the children’s issues in your case involve a child welfare agency and/or allegations of serious sexual abuse (Magellan cases), severe family violence or mental health issues, international child abduction under the Hague Convention or special medical procedures.

All other applications should be filed in the Federal Circuit Court. The Federal Circuit Court deals with less complex matters that are likely to be decided quickly.

You may prefer to seek legal advice before choosing the court in which to file your application.

The forms you must use and the processes you must follow depend on which Court you apply to; the courts have different application forms and different requirements associated with filing an application. For further information go to the Forms section of the family law website, call 1300 352 000 or visit a family law registry near you.

If the matter is urgent (for example if you seek a recovery order), you may need to seek an urgent interim hearing.  

If there are existing orders, you should read the related information as there are extra things you may need to do. Follow the above link  'Applying to change an existing order'.

For a copy of the Attorney-General's fact sheet 'Parenting plans' visit Family Relationships Online located under website links.  

Is there a filing fee for parenting order applications?

Yes. Information on the filing fees is available under the Fees section of the family law website.

What happens when you apply for a parenting order?

When you apply to the Family Law Courts for parenting orders, you will be advised about the events that you will need to attend before your application is determined by a judge or federal magistrate. The case management process will be different in the Family Court and the Federal Magistrates Court. 

 


 

 



 

 

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