The different types of parenting matters and orders that a parent may apply for
Parenting orders can be made based on an agreement between you and your partner, or if you cannot reach an agreement, you can apply to the Court to make a parenting order after a court hearing. A parenting order is a set of orders made by the court about parenting arrangements for a child.
APPLYING TO CHANGE AN EXISTING ORDER
To change an existing order, you have to show that the circumstances have changed significantly and that changes are necessary. If the other parent approaches you to change an existing order, you should consider whether the changes are in the best interest of your child.
If you agree with the changes, you can draw up a draft consent order and apply to the Family Court to make it into an order. Alternatively, you can enter into a Parenting Plan. Take note a Parenting Plan is not a legally enforceable document unless it was so ordered by the Court.
If you don’t agree to the changes, or the other parent won’t agree to changes that you propose, you can apply to the Court for an order to change the existing order in the same way as you would have if there were no agreement in the first place.
If your child/ren primarily live with you and you need or want to move to another town, state or country, you need to discuss this with the other parent.
If you cannot reach an agreement about relocating, you can apply to the Court for an order granting permission to relocate. The Court will always consider the best interest of the child before making any decisions. The Court may refuse to permit you.
Take note: If you relocate without the consent of the other party or a Court Order, the court may request that you return with the child/ren and remain there until the case has reached an outcome. Remember, if there is an existing Court order preventing you from relocating, you will be breaking that order if you relocate. The other parent can then approach the Court to enforce that existing order.
INTERNATIONAL TRAVEL ORDERS
Airport Watch List Orders
If you are concerned that your child may be taken out of Australia without your permission, you can apply to the Court for orders to prevent your child from leaving Australia. One option is to apply to the Court for an order requesting the Australian Federal Police to put your child’s name on the Airports Watch List. Part VII – Division 6 of the Family Law Act 1975 gives the Court the power to grant an Airport Watch List Order restricting a parent or other persons from removing your child from Australia.
Take note: The child’s name will stay on that list until a further Court order to remove his/her name. While the child’s name appears on that list he/she will not be allowed to leave Australia.
If you wish to take your child out of Australia at a later stage or consents to your child leaving Australia, you must apply to the Court (before you travel) to have your child’s name removed from the Airport Watch list.
In the case of an emergency, if there is a risk that your child will be taken out of Australia before the next working day, you can call the Courts on 1300352000 after business hours. You will be directed to an emergency number.
If you are concerned that your child may leave Australia without your permission, you can apply for an order that:
- Prevents a passport being issued for your child
The Court can issue a Child Alert Order. Such an order alerts the Department of Home Affairs and Trade that someone might apply for a passport without the necessary legal consent. You will then be notified if someone applies for a passport for your child while the order is in place.
A court-ordered child alert stays in place until the child turns 18, or as directed by the Court.
- Requires a person to deliver the child’s passport or the accompanying adult’s passport to the Court.
The Court will order that the child’s current passport must be delivered to the Court.The Court will keep it for a specified time, or until a further Court order.
An order permitting your child to travel
To issue an Australian passport, you need the written consent of each person who has parental responsibility for the child. If one of the parties refuses to give consent, or you have failed in your “special circumstances” request to the Department of Foreign Affairs and Trade, you can apply to the Court for an order permitting your child to travel internationally. The Court will only grant such an order if it in the best interest of the child.
THE HAGUE CONVENTION
If your child is taken from Australia without your permission, or without permission from the Court, the Hague Convention may apply. The Hague Convention is an international treaty dealing with arrangements to return children who have been wrongfully removed from their country. It aims to secure the prompt return of such a child.
If your child was taken overseas without your permission, you might be able to apply for a Recovery Order (see below) regarding the Hague Convention.
BREACH OF CURRENT PARENTING ORDERS
Each party affected by a parenting order must comply with the order. You must do everything the order says. The order will remain in force until the Court makes a new parenting order or you enter into a parenting plan.
If your, or the child’s, circumstances change to such an extent that the existing parenting order no longer reflects current arrangements, you can ask the court to make an order to change the existing order. The same applies if one party can no longer reasonably comply with the order.
If the order has been breached, you should first try and resolve the issue by attending dispute resolution. The Court often requires parties first to attempt to resolve matters through family dispute resolution and obtain a certificate before applying to the Court.
If you cannot reach an agreement and one of the parties does not comply with the parenting order, the other party can apply to the Court alleging that the person is in breach of the order under Division 13A of Part VII of the Family Law Act 1975.
If the Court finds that a party has failed to comply with the order without a reasonable excuse, it may impose penalties. The Court order can range from:
- Enforcing the order,
- Varying the original order,
- Ordering that the guilty party attend programs or do community service
- And pay a fine.
- In serious cases, you can be sentenced to imprisonment.
RECOVERY, LOCATION AND PUBLICATION ORDERS
Section 67Q of the Family Law Act 1975 defines a Recovery Order as a Court order authorizing the AFP to find, recover and deliver a child to the applicant.
There are different processes for applying for a Recovery Order depending on whether you have a current parenting order or a parenting case pending in Court.
- If you have an existing Parenting Order from the Family Court or there is a pending application for a parenting order in front of the Court, you need to file an Application in a Case (accompanied by the required documents).
- If there is no parenting order, you need to file an Initiating Application seeking parenting orders at the same time as applying for a Recovery Order.
In some cases, you may ask the Court for additional orders to help locate the child. For example:
If you think the child is in Australia, but you don’t know where you can apply for a location order.
A location order
- Requires a person to provide the Court with any information they have or obtain the child’s location.
- Requires the Secretary of a Department or appropriate authority of a Commonwealth instrumentality to provide information about the child’s location that is contained in their records. This is called a Commonwealth Information Order. An example of such an authority is Centrelink.
If such an order is granted the person or authority must provide the information requested by the Court as soon as practicable after obtaining the information.
A publication order allows the media to publish photographs and details of the missing child and the person who they believe the child is with. Each case is different, and the specific terms of each order can be different depending on the circumstances.
Applying for Recovery, Location and Publication Orders can be complex. You should seek legal advice before you start the process.
GRANDPARENTS AND OTHER CARERS
The law recognizes the importance of grandparents in a child’s life. Some times grandparents take on a more permanent caring role in the children’s life. If you are a grandparent carer or any other person concerned with the care, development and welfare of the child, you can apply to the Court for a parenting order.
AN ORDER TO CHANGE A CHILD’S NAME
The legal requirements to change a child’s name vary from state to state. To find out what the requirements in your state are, you should contact the Registry of Births, Deaths and Marriages in your state.
If you want to register a change for your child’s name, you should discuss it with the other parent and try to get him/her to consent. If the other parent refuses to give consent, you can apply for a Court Order to change the child’s name.
Take note: Sometimes a court order alone is not enough to register a change of the child’s name. You should seek legal advice before you apply to the Court.
AN ORDER TO ADOPT A STEPCHILD
Adoption of children falls under state law in the Supreme Court or the Children’s Court.
If you want to adopt a stepchild, you may need to apply for leave from the Family Court of Australia first.
Section 60G of the Family Law Act 1975 says the Court may grant leave for proceedings to commence for the adoption of a child by a “prescribed adopting parent”.
A prescribed adopting parent is:
- a parent of the child, or
- the spouse (or a de facto partner) of a parent of the child, or
- a parent of the child and either his or her spouse, or de facto partner.
The Court will always consider whether granting leave would be in the best interest of the child.
You should obtain legal advice about what to include in your supporting affidavits. To start the proceedings you have to file an Initiating Application to seek parenting orders in the Family Court.
AN ORDER TO PROOF PARENTAGE
It is sometimes necessary to seek a parenting test to determine parentage for parenting orders or to refute a child support application.
Section 69VA of the Family Court states that the Court may issue a “declaration of parentage” that is conclusive evidence of parentage for all Commonwealth law purposes.
To apply for an order to determine parentage about parenting orders, you follow the procedure as you would if you and the other parent cannot agree on parenting matters.
If the order to determine parentage is in relation to child support, the test must be done through a DNA laboratory accredited by the Attorney General’s Department.
AN ORDER FOR FINANCIAL SUPPORT OF A CHILD THAT IS 18 OR OVER
In terms of section 66L of the Family Law Act 1975 the Court can make an order for child maintenance in relation to a child who is 18 or over if:
- It is necessary to enable the child to complete his/her education.
- It is necessary because of the child’s mental or physical disability.
The Court can make the order whilst the child is 17, but the order will take effect when the child turns 18.
Section 151B of the Child Support Act 1989 states that if a child turns 18 and he/she is still in full-time secondary education, and there is an existing child support assessment, you can apply to Child Support to extend the assessment. You need to apply before the child turns 18, unless there are exceptional circumstances. The extension will carry on until the last day of the school year in which the child turns 18.
Most of these parenting orders have specific requirements and procedures. If you are unsure of your situation, get legal advice from a lawyer with experience in this field of Family Law.