Parenting Orders: What You Need to Know
Understanding parenting orders, parenting arrangements, and your legal obligations as a parent under the Family Law Act 1975 can be a lot to consider when you are also negotiating a significant relationship breakdown.
The best place to start is to get clear about your options and access some good early legal advice. This will help you to feel more informed and empowered. Our quick guide will walk you through the key aspects of parenting orders and what you need to know if you’re going through this process.
What Are Parenting Orders?
Parenting orders are legal decisions made by the Family Court of Australia or the Federal Circuit and Family Court. They are essentially the same as Consent Orders, except for one difference.
Consent orders are made by mutual agreement of both parties, and then finalised by the court. Parenting orders look very similar and serve the same own agreement independently.
purpose but are decided upon by the court when parents cannot reach their
These orders detail the care arrangements for children after their parents have separated. A parenting order can cover various aspects of the care arrangements for children, such as where they live, how much time they spend with each other (both parents), and how decision-making about their health, education, and general welfare will be approached.
These orders are made with the best interests of the child as the primary focus. The court considers several factors when determining these interests, including the child’s relationship with both parents, the child’s wishes, and whether there are any risks of family violence or child abuse.
Parenting orders are generally only required in parenting cases where there is a high level of conflict between parents, or one parent is making the process of finalising orders difficult. They may also be required if a family violence order is in place, for the purposes of child protection or when previous attempts at parenting proceedings have been unsuccessful.
Types of Parenting Orders
There are different types of parenting orders that address various aspects of the child’s care:
- Interim Orders: Temporary orders that apply while waiting for a final court decision.
- Final Orders: These are permanent orders that apply unless a significant change occurs that requires new orders to be made.
- Recovery Orders: These are issued when a child is not returned after spending time with a parent, and the court believes the child is in immediate danger.
Parents are legally obligated to comply with these orders, and any breach can lead to serious legal consequences. If one parent believes the other has not followed the orders, they can file a contravention application with the court.
Parenting Plans and Consent Orders
In many cases, separated parents can agree on parenting arrangements without needing to go to court. These agreements can be formalised in a parenting plan or consent orders.
- Parenting Plan: A written agreement between parents outlining how they will share the care of the children. It’s less formal than a court order and is not legally binding, but it can be useful in demonstrating that both parents have made a genuine effort to resolve their parenting issues.
- Consent Orders: If parents agree on all parenting matters, they can apply for consent orders through the court. These orders have the same legal effect as a parenting order made by a judge, but the process is quicker and less stressful.
The Legal Process for Parenting Orders
If parents cannot reach an agreement, they may need to apply for a parenting order in the Family Court of Australia or the Federal Circuit and Family Court – (or the Family Court of Western Australia). The court process involves several steps:
- Pre-action procedures: Before starting court proceedings, separated parents are required to attend Family Dispute Resolution (FDR). This is a mediation process where a Family Dispute Resolution practitioner helps the parents try to reach an agreement. If FDR is unsuccessful, the practitioner issues a Section 60I certificate, which allows the parents to file for a parenting order.
- Initiating application: If FDR does not lead to a resolution, the next step is to file an initiating application for parenting orders. This document explains what orders the parent is seeking and why.
- Court hearing: A judicial officer will review the case and make decisions based on the best interests of the children. This may involve several hearings, with both parents presenting their evidence.
- Final Parenting Orders: After the court has considered all the evidence, they will issue Final Orders. These orders set out how the parents will share the care of the children and make decisions about their development, health, and education.
What Factors Does the Court Consider?
When making a parenting order, the court’s paramount consideration is the best interests of the child. Factors that influence this decision include:
- The child’s relationship with each parent and other significant family members.
- The need to protect the child from family violence and child abuse.
- The children’s views, especially if they are older and capable of expressing their preferences.
- Each parent’s capacity to meet the child’s needs, including their ability to provide a safe and nurturing environment.
The court will also consider any current orders in place and whether they need to be adjusted to suit the child’s changing circumstances. If the court finds that one parent is a risk to the child’s safety, they may issue Family Court Orders or an intervention order to protect the child.
What Happens if Parenting Orders Are Breached?
If a parent fails to follow the parenting orders, the other parent can file a contravention application. However, the court will only enforce orders if there is no reasonable excuse for the breach. For instance, if a parent believes the child is in immediate danger, they may have a reasonable excuse for not following the orders.
Support Services for Separated Parents
Navigating parenting disputes can be challenging, but many support services are available to help parents work through these issues. Family counselling, family mediation, and family dispute resolution services are all designed to assist separated parents in resolving their parenting issues outside of court.
Family Relationship Centres also offer post-separation parenting programs to help parents adjust to new parenting arrangements and focus on the best interests of the children. Additionally, Legal Aid can provide legal assistance to parents who cannot afford to hire a lawyer, and Victoria Legal Aid is available to help parents in Victoria.
What Do I Do If We Need to Change Existing Parenting Orders
In some cases, Final Parenting Orders need to be changed due to significant changes in circumstances. If parents can agree on new parenting arrangements, they can apply for consent orders to update the existing orders. If they cannot agree, one parent may need to apply for new Parenting Orders through the court.
Having Legal Assistance & Support Makes The Process Easier
Whether you’re dealing with a parenting dispute or seeking to change an existing parenting order, getting legal advice from an experienced family law team can help ensure you understand your rights and obligations. Experienced family lawyers can help you navigate the court process, negotiate parenting agreements, and provide representation in court if necessary.
Legal professionals can also assist with property settlement, child support, and other related family law matters to ensure all aspects of your post-separation life are addressed.
Navigating parenting matters during and after a separation is never easy, but with the right support and understanding of your legal rights, you can work toward a positive outcome for your children. Whether you need to apply for parenting orders, negotiate a parenting plan, or modify an existing order, the family law system is designed to ensure that the best interests of the children remain the central focus.