Applying for Parenting Orders
The court no longer makes ‘residence’, ‘contact’ and ‘specific issues’ orders but the same kinds of arrangements for children are included in what are now called parenting orders.
Parents (including same-sex parents), grandparents and other relatives or anyone concerned about a child’s welfare can apply for parenting orders. They can also be included in parenting orders when it is in the child’s best interests.
Parenting orders can include where the child lives and who the child spends time or communicates with. Parenting orders can also include child maintenance and specific issues such as education, holidays and sport and religious, cultural and medical matters. Parenting orders can also include:
• how parental responsibility is to be shared between the parties, including decisions about major long-term issues
• how the parties communicate when exercising parental responsibility (for example, using email, telephone or text messaging)
• how disagreements about the order are sorted out
• what steps are taken before an application is made to the court to change the order or orders
• any aspect of the care, welfare or development of a child. Look at s.64B of the Act for information on what can be included in a parenting order. When the court makes a parenting order it begins by giving the parents equal shared parental responsibility, unless:
• there is family violence or child abuse, or
• if it would not be in the children’s best interests.
Section 61DA of the Act. If the court finds there is equal shared parental responsibility, it must look at both parents sharing equal time with the children. If equal time is not practical or not in the children’s best interests, the court then asks if spending‘ substantial and significant time’ with the children would be in their best interests. Substantial and significant time must include:
• weekdays, weekends, holidays and other times
• time that allows the parent to be part of the child’s normal day
• days or events that are special to both the child and the parent. (See Section 65DAA of the Act)The court can order that children spend any length of time with either parent. These arrangements must be practical and in the best interests of the children. Some parenting orders made after 1 July 2007 can only be changed later by another order. This only happens if the court believes that later parenting plans may be made using threats or violence. See‘ Parenting plans’.
Parenting orders and dispute resolution
In most cases, you now need to participate in family dispute resolution before you apply for a parenting order. You also need to do this before you apply to change a parenting order.
Interim (short) orders
An interim hearing is a short hearing where the court makes temporary orders while you arewaiting for a final decision. If you have a Division 12A case, interim orders can be made at anytime throughout the trial or hearing.
At an interim hearing the court will use the information you have filed to make a decision or interim order. Only in exceptional circumstances will the court hear evidence from you and your witnesses.
Common applications for interim orders include:
• children's matters that cannot wait until a final hearing or trial
• urgent cases involving children. For example, stopping a person from taking a child out of the country (‘injunction’) or finding (‘recovering’) a child who has been taken (‘recovery order’).
If you believe your case is urgent, you can ask the court for an urgent hearing. Ask the registrar when you file your application. To do this, the first order on your application should read: ‘That this case be deemed urgent and that all times be abridged’.
You need to explain why your case should be heard urgently. This is done in an affidavit. Both courts have affidavit forms you can use.
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