Interim & final parenting orders
parenting orders generally
Parenting orders are legal orders issued by a court regarding the parenting arrangements for a child.
A court order determining parental responsibilities contains, among others, the decision of the family court (section 64B of the Family Law Act ) as to whom the child should live with; and how the child will maintain communication with the parent with whom he or she does not live. It may also contain rules on how parents can share the parenting responsibility over their children.
A parenting order may also contain the process by which long-term decisions about the child’s welfare can be made; and how disputes about the child’s living arrangements can be resolved. It can also require the parents to attend parenting classes where they can learn what their responsibilities as parents are.
When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
All family court orders have the force of law as to the parties. Compliance is mandatory. When a party subject to a parenting order fails to comply with any of its provisions, the family court can receive evidence to prove the fact of the breach of the order.
The family court can decide if the breach was not duly proved to have been committed; or if it was committed but there was a reasonable excuse for the breach; or if there was no reasonable excuse for the breach. The family court can then modify its parenting order or it can require the party who committed the breach to enter into a bond, pay a fine or serve a prison sentence for the breach. The family court can also order the parent or party in breach of parental obligations imposed by the court to pay damages or costs.
When the family court has given a parent who does not live with the child the opportunity to visit temporarily with the child, but the parent fails or refuses to return the child to the parent whom the child is living with, the family court can order the police to locate the parent and the child and to recover the child.
Court orders governing parental responsibilities can be altered or amended by application of a parent as when the parent’s circumstances change. In the case where a parent applies for a modification, the family court can issue a new order reflecting the parent’s change of circumstances. Parenting orders can also be altered or amended by a subsequent written agreement between the parents which they have submitted to the family court for approval. In this case, the family court can issue a consent order in which the family court signifies that it adopts the parenting plan of the parents and consents to it.
When the court makes an order that parents are to have equal shared parental responsibility, parents are required to make joint decisions about major long-term issues. “Major long-term issues” include but are not limited to education, religion and cultural upbringing, health, name and living arrangements so far as changes to those issues may impact on the time the child spends with a parent.
In making an application for interim or final parenting orders, your family lawyer will discuss with you other matters which may require an order or matters which the court may make an order in relation to.
- Time Spent and facilitation;
- Weekend time – commencement, conclusion and when such time should recommence following school holiday time;
- School holiday time – period and facilitation;
- Time spent on other special days and holidays such as Mother’s Day, Father’s Day, Birthdays, Easter and Christmas;
- Telephone communication – for example, at a reasonable hour on weekdays and for a reasonable duration; between certain or specified hours on a specific day of the week having regard to the child’s accustomed routine;
- Restraints on bringing the child into the presence of a particular person;
- Restraints on denigrating the other parent in the presence of the child;
- Restraints on discussing the proceedings in front of the child;
- Restraints on consuming drugs or alcohol prior to or during time spent with the child;
- Restraints on relocating a specified distance from current address
The Family Court has the jurisdiction to approve or refuse permission for special medical procedures under the section dealing with the power to make orders for the welfare of children (section 67ZC of the Family Law Act)
The Family Law Rules 2004 contain special rules for special medical procedure applications in Div 4.2.3.If a “medical procedure application” is filed, evidence must be provided to satisfy the Court that the proposed medical procedure is in the best interests of the child. Rule 4.09 sets out the issues the evidence must address, including evidence from medical, psychological or other relevant expert witnesses.
The Rules provide for a medical procedure application to be listed before a Judge as soon as possible after the date of filing. It is common for an Independent Children’s Lawyer to be appointed in medical procedure applications.
The Family Law Act does not expressly address the issue of relocation. Relocation matters are parenting matters where the proposal of one party involves an application to relocate permanently with a child, be it intrastate,interstate or internationally.
Relocation cases will continue to be worried applications, which may be even more heavy on the party seeking to relocate given that if the Court decides the parents are to have equal shared parental responsibility an order for equal time must be considered.
A party wishing to travel overseas with a child must make a reasonable attempt to resolve a dispute and comply with pre action proceedings before commencing proceedings (R 1.05).
Sections 65Y and 65Z of the Family Law Act, provide that if there is a parenting order in place or if there are proceedings regarding which parent a child should live with, the child must not be taken outside Australia without the written consent of each party.
To obtain a passport for a child under 18 years, the written consent of all persons with a caring responsibility for the child (that is a parent, or a Parent who has a parenting order or has parental responsibility for the child, or a guardian of the child) is needed. Each child must be issued with his or her own passport.
To change the name of a child under 18, the consent of both parents is required, except in situations where:
The child does not understand the meaning and implication of the change of name;
Both parents are deceased or cannot be found, or for some reason cannot carry out their parental responsibilities, in which case, the child’s guardian may apply; or
Only one of the parent’s details are recorded on the child’s birth certificate, in which case, that parent can apply; or
There is no other surviving parent, in which case, the surviving parent can apply; or
A court orders the change of name.
If one of the parties involved in a case does not show up to court, and there is an urgent need for the hearing to take place without the other party present, “ex parte” orders can be given.
You would need to specify on your application to the court that you want the orders to be made on an ex parte basis, explaining the circumstances that justify the request, and the court will decide whether or not to approve the application.
If a request is not made, but one party does not show up for a hearing, the court can decide on the next orders to make, or can dismiss the proceedings.
Disclaimer : This article provides basic information only and is not a substitute for a professional or legal advice. It is prudent to obtain legal advice from a family lawyer.