When parents separate, it is often necessary to put in place formal arrangements about where the children are to live and who is to be legally responsible for them. This can be done by agreement between the parents or by applying to the Federal Circuit and Family Court of Australia for parenting orders. This page deals with the process for obtaining parenting orders in Australia.
Parenting orders are made under the Family Law Act 1975.
The Family Law Amendment Bill 2023 is currently before the Australian Senate. If passed, this bill will make widespread changes to the Family Law Act 1975, including changes to how parental responsibility is decided and how the best interests of children are assessed.
Best interests of the child
Under the Family Law Act 1975, the paramount consideration when deciding what parenting orders to make is always what is in the best interests of the child.
Under section 60CC of the Family Law Act 1975, the two primary considerations when assessing what is in the best interests of the child are:
- the benefit to the child in having a meaningful relationship with both parents; and
- the need to protect the child from physical and psychological harm.
The Act also lists 16 secondary considerations that must be taken into account. These include:
- The child’s age and maturity
- The involvement of each parent with the child;
- The child’s relationship with each parent;
- The ability for each parent to provide for the child’s needs;
- The child’s wishes and wants;
- The child’s culture; and
- Any issues relating to child abuse and/or family violence.
People often talk about who has ‘custody’ of a child. However, the term ‘custody’ isn’t actually used under the Australian family law system. The person or person who are legally responsible for a child in Australia are said to have ‘parental responsibility’.
Parental responsibility means all the powers and duties relating to making long-term decisions about a child and their upbringing, including decisions about their education, medical care and religion.
Under the Family Law Act 1975 currently, there is a presumption that a child’s parents have equal shared parental responsibility until the child reaches the age of 18. This means that the parents are expected to make decisions jointly about long-term issues affecting the child.
However, this presumption can be overcome if there is sufficient evidence that joint parental responsibility is not in a child’s best interests.
‘Live with’ and ‘spend time with’
As well as deciding who should have parental responsibility for a child, the court will also make orders about who the child lives with and who the child spends time with.
The presumption of equal shared parental responsibility does not mean that parents should have equal time with the children. However, if a court makes orders for equal shared parental responsibility, it must consider whether equal time is appropriate. If equal time is not appropriate, then the court must consider ‘substantial and significant time’ with each parent. This means weekend time and week time.
When considering what ‘time’ arrangements should be in place, what is ‘reasonably practicable’ is also a consideration.
Formalising the arrangement
In some cases, it may be possible for parents to reach an agreement about the living and care arrangement for a child. This can be drafted as a Parenting Plan, which is a signed agreement between parents. A Parenting Plan is not enforceable but may be used as evidence of what has been agreed if the matter ends up in court at a later date.
Alternately, the agreement can be filed with the court, which will formalise it as Consent Orders. Consent Orders are Parenting Orders that are signed by a judge or registrar. They are binding and enforceable.
What if we cannot agree?
If the parents cannot reach an agreement, either party can apply for Family Dispute Resolution. This is a compulsory step that must be taken before the court will accept an application for parenting orders. If there is a specific reason why dispute resolution is inappropriate in the circumstances, an exemption will be granted.
If no agreement can be reached at mediation, either party may file an Application for Parenting Orders. This application should only be filed after all other avenues have been attempted or deemed inappropriate.
In the Application, the parent should set out the details of the orders they are seeking with respect of parental responsibility, live with and spend time with conditions. The Application should be filed together with an affidavit setting out evidence to support the party’s case.
If the matter goes to trial, the judge will make the orders that he or she considers appropriate in the circumstances, taking into account the evidence that is before the court and the considerations set out in the Family Law Act 1975.
If you need legal advice about a Family Law matter or any other legal matter, please contact Taylor Rose.