When parents of a child separate, it is essential that arrangements are put in place to determine where the child will live and when they will see other family members they no longer live with. This can be done by:
- An informal agreement between parents;
- Writing a Parenting Plan; or
- Obtaining Parenting Orders.
In cases where formal arrangements are needed, parenting orders are the most commonly used option.
At Hosking Legal, we understand the distress that parents and children can experience when there is disagreement about what parenting arrangements should be made. We pride ourselves on the use of sound judgment and sensitivity in advising and representing our clients for obtaining Parenting Orders.
Who can apply for a parenting order?
Parents, grandparents and any other person concerned with the care, welfare or development of a child may apply for a parenting order. At Hosking Legal we have experience in representing mothers, fathers, grandparents and other relatives in obtaining court orders. If you are unsure about your eligibility to apply, we can provide advice to you based upon your individual circumstances.
How do I apply for parenting orders?
The Family Law Act states that in most cases it is compulsory to attempt mediation before approaching the court to seek parenting orders. For further information on mediation, please see our Family Dispute Resolution page.
If no agreement is reached at mediation, a person can then apply to the court for a parenting order. Most applications for parenting orders are lodged in the Federal Circuit Court. Certain complex matters, such as international relocation, are lodged in the Family Court of Australia.
The party applying for parenting orders must file an application containing the orders they seek, and complete an affidavit which is a statement of their evidence. Those documents are served on the other party (or parties) to the proceedings. The other party is then given an opportunity to file documents in response to the application.
All applications to the court must contain the final orders that you seek. Final orders usually remain in place until the child reaches adulthood. Final orders commonly deal with the following issues:
- Who has parental responsibility for a child
- Who a child is to live with
- Who a child is to spend time with and communicate with
- Transport arrangements for when the child spends time with various people
- Various other obligations or restraints on parents and other significant people in the child’s life
In many cases, the parties are sent to a Child Dispute Conference (‘CDC’) shortly after the matter is commenced. The parties meet with a Family Consultant who provides a brief report summarising the issues in dispute and making recommendations to assist in resolving the case. Recommendations to the court may include the issuing of subpoenas to obtain useful records, obtaining a family report or expert report, and in some cases appointing an Independent Children’s Lawyer (‘ICL’) to separately represent the child or children.
A party can also apply for interim parenting orders when filing a court application. Interim orders provide for temporary arrangements to be put in place until the matter finally resolves. In some cases the interim orders may need to be revisited due to changes in circumstances. Sometimes parties agree on the temporary arrangements and the interim orders are made by consent. In other matters where parties cannot agree, there may be a short hearing after which the court will make interim orders. A hearing for interim orders will usually be ‘on the papers’ which means the court will read the documents filed by the parties and hear submissions from their lawyers, but there is no cross-examination of witnesses as there would be at a final hearing.
At Hosking Legal we understand the importance of obtaining interim orders that meet our client’s needs, as it may be some time before the court is in a position to make final parenting orders.
In many cases, a further step will be for the parties to obtain a Family Report or an Expert Report. This is a report completed by an independent expert who will make recommendations about what arrangements may be best for your child or children. The court and the parties are not bound by these recommendations, but they will usually be taken into account when deciding what is in the best interests of the children.
Sometimes the parties agree on parenting orders after reading what the expert has said in their report. If there is no agreement and issues remain in dispute, the Judge will allocate specific days to hear the matter when the Judge is satisfied that the matter is ready to be set down for final hearing. At the final hearing, the court will hear evidence from the parties and any witnesses. After hearing the evidence, the Judge will then give a decision with reasons and make final parenting orders.
How does the court decide what orders it will make?
The paramount consideration for the court is what orders will be in the best interests of the child. There are two primary considerations when deciding what is in the best interests of the child:
- The benefit to the child of having a meaningful relationship with both parents; and
- The need to protect the child from harm.
There are also additional considerations that the court takes into account when deciding what is in the best interests of the child:
- The views of the child (if the child is old enough);
- The child’s relationship with the parents and other significant people;
- Whether the child’s parents have taken, or failed to take, the opportunity to participate in making decisions about major long term issues in relation to the child;
- Whether the child’s parents have taken, or failed to take, the opportunity to spend time with the child;
- Whether the parents have fulfilled their obligations to maintain the child;
- The likely effect of any change in the child’s circumstances, including separation from a parent or any other person with whom the child has been living;
- The practical difficulty and expense of the child spending time with both parents;
- The capacity of a parent or significant other person to provide for the needs of the child;
- The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of the child’s parents;
- If the child is an Aboriginal or Torres Strait Islander child, the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture;
- The attitude to the child and to the responsibilities of parenthood demonstrated by each of the child’s parents;
- Whether there are any family violence orders in place; and
- Anything else the court thinks is relevant.
When determining a parenting matter, the court will look at all of the evidence and the above factors to decide which orders are in the best interests of the child. Even if the parties agree on parenting orders between themselves, the court will not make those orders unless it is satisfied that they are in the best interests of the child.
Can I appeal a parenting order?
If a court makes a parenting order that you wish to appeal, you can do so only if there are grounds for appeal. It is not enough to be dissatisfied with the decision. To be successful in appealing a parenting order, you have to show that there is an error in the original decision. An error might include applying the wrong legal principle, making a finding of fact that was not supported by the evidence before the court, or a Judge using their discretion to arrive at a decision that is plainly wrong.
Can final parenting orders be changed?
A party can make an application to the court seeking different parenting orders if there has been a significant change in circumstances since the final parenting orders were made. Some examples of a change in circumstances might include one parent wishing to move far away with the child, or if one parent can no longer reasonably comply with the orders.
If you wish to change the existing parenting orders, you will need to attempt mediation unless you have already done so in the past 12 months, or you meet one of the criteria that would exempt you from attending mediation. For further information on mediation, please see our Family Dispute Resolution (hyperlink to FDR page) page.
If you cannot reach an agreement at mediation, or if you are exempt from attending mediation, you may then apply to the court to change the parenting orders after you demonstrate there has been a significant change in circumstances. At Hosking Legal we can offer advice about the merits of applying to have parenting orders changed.
Other parenting matters
At Hosking Legal, we are able to provide advice on all aspects of parenting matters in Wollongong including:
- Age appropriate parenting orders
- Parenting plans
- Paternity disputes
- Child support
- Changing a child’s name
- The effect of family violence on parenting orders
- What to do if a person does not comply with a parenting order
If you require advice in relation to parenting matters, please contact our office in Wollongong and speak with one of our solicitors.