In some cases, an application to the Court will be required to obtain formal arrangements concerning the care of the children.
It does not make any difference whether your Parenting Orders are made by consent or by a Magistrate at the Local Court, or by a Judge. Orders, once made by the Court, must be complied with.
Parenting Orders are usually clear and specific. They include, for instance, times and dates for periods of time that children will spend with each parent. Orders may also require that a parent do something specific (such as authorise a school to release information to the other parent).
It is important when Orders are made, that they are complied with. For example, if the time stated for changeover after a period of time with the child is 5.00pm, you need to ensure you arrive at 5.00pm and no later. Obviously, any agreement between the parties can be reached to vary Orders. Please discuss this with your solicitor beforehand.
There are very serious consequences if Orders are not complied with. Consequences will apply to each of the parties.
The Family Law Act, and the decisions made in previous cases in this area, also set out other obligations on parents who are subject to Orders under the Act. These include things such as:
a) To actively encourage and promote the child’s relationship with the other parent
b) To help create a positive attitude towards the other parent
c) To actively promote a positive environment for the child
d) To ensure, for example, that there is a provision for telephone communication, and to make the child available to take the phone call at the specified time.
Changing or Varying Court Orders
Changing or varying Court Orders can be done either by agreement between the parties or by application to the Court.
In considering if Orders should be varied where there is no agreement, the Court must find that there has been a significant change in circumstance since the making of the last Orders.
It is important in the absence of an agreement that you continue to follow the old Court Orders to the best of your ability, until they are changed by the Court.
Court Applications
In deciding whether to make a particular parenting Order in relation to a child, the Court must regard the best interests of the child as the paramount consideration. In any application to the Court, the Family Law Act sets out the specific provisions that the Court will be obliged to consider:
- the benefit to the child of having a meaningful relationship with both of the child’s parents; and
- the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The Act provides that there is a presumption that parents have equal shared parental responsibility for their children. This presumption is applied unless rebutted.
If parents have equal shared parental responsibility the Court must:
- consider whether a child spending equal time with each of the parents would be in the best interests of that child; and
- consider whether a child spending equal time with each of the parents is reasonably practicable; and
- if it is, consider making an Order to provide for the child to spend equal time with each of the parents.
If the Court does not make an Order for a child to spend equal time with each of the parents then the Court must:
- consider whether a child spending substantial and significant time with each of the parents would be in the best interests of that child; and
- consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
- if it is, consider making an Order to provide for the child to spend substantial and significant time with each of the parents.
The Act also provides some definition as to what is meant by substantial and significant time. This is defined as:
a) the time the child spends with the parent includes both:
– days that fall on weekends and holidays; and
– days that do not fall on weekends or holidays; and
b) the time the child spends with the parent allows the parent to be involved in:
– the child’s daily routine; and
– occasions and events that are of particular significance to the child; and
c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
If neither equal time, or substantial and significant time are practicable, or considered to be in a child’s best interests, then the Court can make such Orders as they consider would be in the best interests of that child regarding the time a child will spend with each parent or other significant person.
In making these Orders, the Court will then need to take into account the following (except when it is, or would be, contrary to a child’s best interests):
- Children have the right to know and be cared for by both of their parents;
- Children have a right to spend time on a regular basis, and communicate, with both parents and other significant people;
- Parents should jointly share duties and responsibilities concerning the care, welfare and development of their children;
- Parents should agree about the future parenting of their children; and
- Children have a right to enjoy their culture.
The Court will, in addition to the above principles and presumptions, consider the following when determining what is in a child’s best interests:
- any views expressed by the child;
- the nature of the relationship of the child with each of the child’s parents and with other persons (including any grandparent or other relative of the child);
- the extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child, and spend time and communicate with the child;
- the extent to which each of the child’s parents has fulfilled, or failed to fulfil, their obligations to maintain the child;
- the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents, or any other child or other person with whom he or she has been living (including any grandparent or other relative of the child);
- the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
- the capacity of each parent, or of any other person (including any grandparent or other relative of the child), to provide for the needs of the child including emotional and intellectual needs;
- the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the Court thinks are relevant;
- If the child is an Aboriginal child or a Torres Strait Islander child, the child’s right to enjoy his or her culture (including the right to enjoy that culture with the other people who share that culture); and the likely impact any proposed parenting Order will have on that right;
- The attitude to the child and to the responsibilities of parenthood demonstrated by each of the child’s parents;
- any family violence involving the child or a member of the child’s family;
- any family violence Order that applies, or has applied, to the child or a member of the child’s family and any relevant Inferences that can be drawn from the Order, taking into account the nature of the Order, circumstances in which the Order was made, any evidence admitted in proceedings for the Order, any findings made by the court, and any other relevant matter;
- whether it would be preferable to make the Order that would be least likely to lead to the institution of further proceedings in relation to the child;
- any other fact or circumstance that the Court thinks is relevant.
Attending Court in Parenting Matters
Our office files applications primarily in the Family Court or Federal Circuit Court located at Parramatta. The Family Court deals with parenting applications under the Less Adversarial Trial Process (“LAT”).
The LAT process has several characteristics in that it:
- Does not strictly apply the rules of evidence;
- Allocates a Judge at the beginning of the case that will hear the matter to completion;
- Has hearings dealt with from the first LAT event and has issues dealt with quicker, with less procedural steps;
- Has Child and Family Consultants present who participate in Court proceedings from an early date.