Parenting orders are legally binding decisions made by the Federal Circuit and Family Court of Australia (FCFCOA) about children’s care arrangements after separation or divorce.
These orders govern essential aspects of children’s lives, including who they live with, how much time they spend with each parent, joint decision-making responsibilities on significant issues such as health and education, and how they communicate with other relatives, such as extended family.
The law recognises that children benefit from a meaningful relationship with both parents, provided it does not compromise their safety or wellbeing. Parenting orders are made under the Family Law Act 1975, which prioritises the child’s best interests above all else.
Consent Orders vs Court-Decided Parenting Orders
There are two ways parenting orders can be made:
- Consent Orders: When the child’s parents reach an agreement about care arrangements, they can apply for consent orders through the court without appearing in Court. Once approved, these orders have the same legal effect as any court order.
- Parenting Orders After a Hearing: If parents cannot agree, they may need to resolve their dispute through court proceedings. In this case, the court decides based on the child’s best interests, with input from parents’ submissions and any reports or opinions of relevant professionals or Independent Children’s Lawyers (if the Court appoints one).
While the process differs, consent and parenting orders made after a hearing are equally enforceable. A parenting agreement alone is not legally binding unless formalised as a consent order.
Applying for Parenting Orders
The Family Law Act requires parents to genuinely resolve disputes through mediation before applying for parenting orders. If this fails, the mediator issues a certificate allowing the parents to initiate court proceedings (s60I Certificate).
You may bypass this requirement if there is an Intervention Order, or there are risks to the child’s safety, such as family violence or neglect involving abuse, or if an urgent hearing is needed. In these cases, immediate court intervention may be necessary.
Applications are filed with the Federal Circuit and Family Court of Australia, with supporting documents like affidavits, a family report if available, and other evidence addressing the child’s developmental needs and welfare.
What the Court Considers in Parenting Matters
The court always considers the safety and best interests of the child as the paramount factors. Key considerations include:
- The need to protect the child from psychological harm, neglect involving abuse, or family violence
- The benefit of the child having a meaningful relationship with both parents
- The child’s views, if relevant, taking into account their age and maturity
- The effect of separation from either parent or other relatives
- The capacity of each parent to provide for the child’s needs
- Practical considerations, such as the ability to spend equal time or significant time with both parents
Court child experts, including family consultants, may prepare a family report that assesses these factors and recommends arrangements that best support the child’s wellbeing to assist the parties and the Court in finding a resolution.
Family Violence & Parenting Orders
Family violence is a serious consideration in parenting matters. The court takes a cautious approach when there is evidence of abuse, making orders that protect the child and any affected parent.
Orders can be made to prevent children from being exposed to harm, limit contact with a parent, or require supervised visits. For example, hair follicle tests can be ordered where there are allegations of drug or alcohol abuse. If you or your child faces safety risks, seeking urgent legal advice and support services is crucial.
Child Support & Parenting Arrangements
While child support and parenting orders are distinct legal matters, the time a child spends with each parent directly affects child support calculations. Services Australia administers child support payments based on the care percentage each parent provides. Alternatively, parties may reach an agreement on child support and enter into a private child support agreement.
Having clear parenting orders helps ensure that both child support obligations and care arrangements reflect the agreed or court-ordered parenting time.
Changing Parenting Orders
Parenting orders are intended to be stable, but they can be varied if particular circumstances change significantly. Examples include a parent moving interstate, changes in a child’s developmental needs, or risks to the child’s safety.
You must demonstrate a material change in circumstances and a genuine reason for seeking variation. If both parents agree, a new consent order can be lodged. Otherwise, the court will decide whether a change is justified.
Breaching Parenting Orders & Enforcement
Breaching a parenting order, whether by refusing contact, preventing children from spending time with the other parent, or failing to comply with joint decision-making, can lead to serious legal consequences.
If the other party breaches the order, you can:
- Attempt negotiation or mediation
- Seek help from a trusted Family Lawyer, the Family Relationship Advice Line or support services.
- Apply to the court for enforcement, which may result in penalties, make-up time, a change of the child’s residence or fines.
The court may also issue location or recovery orders if a parent prevents children from spending time with the other parent or relocates without agreement.
Court Process & Involvement of Experts
The court process involves several stages:
- Filing of documents by one party and response by the other party
- Initial court hearings and possible interim orders
- Appointment of family consultants or experts to prepare reports
- Court child expert interviews and/or family report preparation
- Further mediations (or Family Dispute conferences)
- Final hearings where the court decides based on all the evidence
Experts play a crucial role in helping the court understand the family relationships, the child’s needs, and the likely impact of various arrangements. However, ultimately, a Judge will decide after hearing all evidence if the parties cannot agree between themselves.
Seeking Legal Advice & Support
Parenting orders protect children’s well-being and ensure their care arrangements reflect their best interests. Whether made by consent or court decision, they are legally enforceable and come with significant legal obligations.
Making parenting orders can be complex, especially when family violence, relocation, or disagreements arise. Seeking advice from a Family Lawyer ensures you understand your legal obligations and rights. It also ensures that all aspects of future parenting, such as communication, education arrangements, travel, etc., are covered in the Orders.
If you are negotiating parenting arrangements, facing court proceedings, or dealing with a breach of existing parenting orders, it is essential to seek independent legal advice. Always prioritise your child’s safety and wellbeing, and engage with support services if needed.
Understanding your rights, knowing how the court decides parenting matters, and accessing the right advice will help you confidently navigate this challenging process.
If you need assistance or advice drafting parenting orders, altering existing parenting orders or with any other children’s matter, get in touch with our team at Pearsons Lawyers, or call us on 1300 699 688 for your initial free appointment so you will “Know Where you Stand”.
