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Parenting Orders – What the Court Considers, etc

The court presumes that it is in the best interests of the children for parents to have ‘equal shared parental responsibility’.

Information from the
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Victoria Legal Aid website:
Parenting orders

From 1 July 2006, parenting orders replaced other orders relating to children, including 'residence', 'contact' and 'specific issues' orders.

A parenting order is a court order that sets out particular responsibilities regarding children. A parenting order may cover:

- which person the children will live with

- who the children spend time and communicate with

- any other issues relevant to the care of the children, such as schooling or medical treatment.

Parenting orders can also include the process to be used to sort out disagreements about the order later. If there are more than two people sharing parental responsibility, a parenting order can include how they will communicate with each other.

Parenting orders can be made through the court by 'consent' (where you both agree), or made by the court after a trial or hearing where special rules apply to help the court to make a decision.

You will be asked by the judge or federal magistrate what you think is best for the children. Your view will be taken into account but the court must make a decision on the basis that the most important factor is what is in the best interests of the child.

If it is important for a particular issue to be sorted out or the situation is urgent, 'interim' (temporary) parenting orders can be made.. These can be altered at any time by the court before or at the final hearing.

Note: Changing (or making) parenting arrangements may affect the amount of child support you receive. The laws about child support are completely changing, with the major change beginning on 1 July 2008.
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Parenting orders - what the court considers


The main consideration of the court is whether the proposed arrangements are in the best interests of the children. See 'Deciding children's best interests' (link below).

The court presumes that it is in the best interests of the children for parents to have 'equal shared parental responsibility'. This does not apply if there has been child abuse or violence by a parent or a person who lives with the parent (including abuse of any child within these families). Other evidence may convince the court that equal shared responsibility is not in the best interests of the children.

Equal shared parental responsibility

Equal shared parental responsibility is not the same as equal parenting time. Equal shared parental responsibility means both parents sharing major long-term decision making about the children. This includes children's:

- medical matters

- religious matters

- cultural matters

- education

- living arrangements.

Day-to-day decisions, such as what the children eat or wear, are not included.

If the court finds both parents share parental responsibility then the parents must try to come to agreement about major long-term decisions affecting the children.

Parenting time

If equal shared parental responsibility is presumed, the court must consider whether it is practical and in the best interests of the children for them to spend equal time or 'substantial and significant time' with each parent.

Substantial and significant time includes children spending weekdays, weekends and holidays with each parent and each parent having meaningful involvement with the children's daily routine. It also includes spending time with children on significant days such as birthdays or at school concerts.

Practical considerations

When deciding whether an arrangement is practical, the court will look at:

- how equal or substantial and significant time will affect the children

- how far apart the parties live

- each parent's ability to share care and communicate with one another

- any other consideration the court thinks relevant.

Other things to consider for parenting orders

The law does not require a parent to see their child. However, parents must not stop or interfere with the other parent's rights or responsibilities under the parenting order.

The court only considers making orders where the children do not see one parent in special circumstances, such as where the court considers the child to be at serious risk of harm. This is rare.

If the court considers that children may be at risk in the care of one parent, it can order that they spend time or communicate with that parent under certain conditions or under supervision by another person who has been agreed to by the court. This can be another relative or someone at a contact service. A contact service is a place where children can be dropped off and picked up or where children can spend supervised time with a parent.

There is no defined age when children can decide on their own living or communicating arrangements. The law takes into account the emotional and intellectual maturity of children as well as their age when considering their wishes.

Considering children's views

When making parenting orders, the court does not usually hear directly from children, although it can. Children do not usually go into court.

Children's attitudes and views may be made known to the court in a family report or through an independent children's lawyer.

Family reports

A family report may be ordered by the court to help the court understand the issues in dispute and the family relationships generally. The report is not made on behalf of either parent.

The report helps the court make a decision about parenting arrangements that are in the best interests of the children. It is made by a family consultant or other person approved by the court. This person can speak to the parents, the children and any other people who may have relevant information about the children or the issues in the dispute.

The report may include:

- the background to the dispute

- the current relationship between the parents

- the current relationship between the parents and the children

- the children's views

- how the children see the relationship with significant adults in their life

- information on the cultural and linguistic (language) background of the children, and an opinion on how to make sure the children maintain a connection with this background

- an opinion on how to sort out the dispute.

Independent children's lawyers

An independent children's lawyer helps the court decide what arrangements are in the children's best interests. The independent children's lawyer does not represent any person in the case.

An independent children's lawyer may:

- get information from teachers, doctors or counsellors

- consider all other evidence presented to the court

- talk with the children

- arrange for any family or psychological reports.

An independent children's lawyer does not have to act on the children's views, but must make sure that these views are put to the court.

Anyone taking part in the proceedings can ask the court to appoint an independent children's lawyer. The court will decide if an independent children's lawyer will be used.
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Applying for parenting orders


Parenting order applications are usually made if:

- parents cannot agree on arrangements for the children, for example, where the children will live, or who they will spend special occasions or holidays with

- the situation of the parent or the children changes and this affects existing parenting orders, for example where one parent moves interstate (note: if you have a parenting order made on or after 1 July 2006 and you make a parenting plan later with different arrangements, the plan will have legal force over the order)

- there is an emergency and you or the children are at risk

- there is family violence

- you need to locate (find) and/or recover (return) children

- you need to prevent children from being removed from your care or moved to a new location because it affects their right to a relationship with both parents, or those significant to their care

- negotiations are not possible, for example, due to one person making negotiations difficult or refusing to negotiate.

Who can apply?

Either parent can apply for parenting orders, as can other relatives or people who are important in the children's lives.

The law recognises that people other than parents, such as grandparents and extended family, may play an important role in children's lives. For this reason, people other than the parents can apply for an order or be included in an order.

If you apply for a parenting order you will have a meeting with a family consultant to discuss your application.

If everyone involved does not agree to the application for a parenting order, the court may ask for a report from a family consultant to discuss how the order would work in practice. This is so the court can decide whether the order is in the children's best interests.

Before you apply

Before you make an application for a parenting order you must try to sort out an agreement with your ex-partner (or other people involved). You must include a certificate from a family dispute resolution practitioner with your application. The certificate will say that you have either been to, or attempted to go to, family dispute resolution or that in the opinion of the practitioner, it is not appropriate for you to go. There are exceptions to this. See 'Family dispute resolution' (link below).

Family consultants

If you have a children's case you will most likely have meetings with a family consultant.

Family consultants are child psychologists and/or social workers who help and advise people in cases in the family law courts and the Family Court of Western Australia.

The family consultant may interview the parties and other significant people in the children's lives. The consultant will probably also talk to the children, and may spend time with the children and the parties together. The consultant then writes a family report for the court to consider.

Anything said to a family consultant is not confidential and can be 'admitted' (used in court) as evidence.
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Dispute resolution & parenting orders


If you apply for a parenting order on or after 1 July 2007, in most cases you must attach a certificate from a family dispute resolution practitioner with your application. You also need a certificate if you are applying to vary (change) an existing parenting order.

The family dispute resolution practitioner will provide you with a certificate which will state which of the following categories you fit:

- you have been to family dispute resolution with your ex-partner (or other involved person) and you both made a genuine attempt to sort out an agreement

- you have been to family dispute resolution with your ex-partner (or other involved person) and one or both of you did not make a genuine attempt to come to agreement

- you attempted to go to family dispute resolution but the other person did not turn up or did not wish to participate

- in the opinion of the practitioner it would not be appropriate to conduct family dispute resolution.

Examples of where a family dispute resolution practitioner may consider it inappropriate to conduct family dispute resolution include:

- family violence

- child abuse

- intimidation by one party making it difficult for the other party to participate

Exceptions

There are situations where you do not need to participate in family dispute resolution before making an application for a parenting order. These include where:

- you are applying for interim (temporary) orders or consent orders (where you both agree)

- you are responding to an application made by someone else

- the situation is urgent, for example where a child is missing or has not been returned

- you or other people involved cannot go to dispute resolution because of living too far away from appropriate services, being unwell or because of a mental or physical incapacity

- there is family violence or child abuse, or there is the risk of these happening

- you or the other people involved have 'breached' (broken) a parenting order made during the last 12 months - you need to be confident the court can find that the person who did this has seriously disregarded their obligations under the order

- you have received a previous parenting order between 1 July 2006 and 30 June 2007 (this exception will no longer apply at a future date, check with the court).

The court has rules about putting in an application for a parenting order if you intend to rely on one of these exceptions. Check with the court and get legal advice.

The court must still consider making an order requiring people to participate in family dispute resolution even if one of the above exceptions applies to them.

Once your case has started, you may also be required to participate in further family dispute resolution whether or not you have already done so. If there has been child abuse or family violence you may not need to.
Parenting orders & family violence

In situations where there is family violence or child abuse a family dispute resolution practitioner may decide that you do not need to go to dispute resolution before applying for a parenting order. This includes where threats by the other person make it difficult for you to participate equally in the dispute resolution process.
 
You can also make an application directly to the court without getting a certificate from a family dispute resolution practitioner. However, the court must be satisfied that there is family violence or child abuse, or a risk of these, and that your fear or anxiety is 'reasonable'.
 
There are other situations where you do not have to attach a certificate from a family dispute resolution practitioner, including situations of urgency - for example, if the children have not been returned. Get legal advice.

What the court can do

If the court finds that there are issues of family violence or child abuse it may not immediately make a parenting order. The court may order a state welfare authority to provide it with any relevant information. The court will try to make an 'interim' (temporary) order that protects the children.

In situations where each party says different things and the court cannot determine who is telling the truth, the court may order that one party's time with the children is supervised. The court may also order the appointment of an independent children's lawyer, who can investigate further and make a report.

The court will make sure you get information about services and options available to you from a family counsellor or family dispute resolution practitioner. If there is an urgent risk of family violence or child abuse the court may make a parenting order and direct that you receive information later on.

Parenting orders and family violence orders

A parenting order will override (take the place of) a family violence order made by your local magistrates court if the two orders say different things. The family law courts can also order state and territory agencies (such as a child welfare agency) to give information they may have about family violence or child abuse, or allegations of these.

If there has been family violence or child abuse, or the risk of these, get legal advice. If you are considering family dispute resolution, let the family dispute resolution service know immediately.
Deciding children's best interests

When negotiating or applying for a parenting order it is important to make sure the proposal is workable and in the best interests of the children. The court will decide what is best for the children by looking at a range of considerations.

The court's primary (most important) considerations are:

- the benefit of children having a meaningful relationship with both parents

- the need to protect children from physical and psychological harm, including children seeing family violence, being neglected or being physically or psychologically hurt.

Other considerations are:

- children's views - the court will look at how much children understand and how mature they are. Children do not have to express their views if they don't want to

- the kind of relationship children have with their parents and other significant people, including grandparents, brothers and sisters, and other relatives

- whether each parent will encourage a continued, close relationship between the children and the other parent

- the likely effect of any change to where children have been living or staying, including separating them from either parent, grandparents, siblings, any other relatives or other people important to their welfare

- the practical difficulty and expense of children seeing each parent, and whether that will affect their right to have a relationship with each parent (this includes spending time with and/or communicating with each other)

- how much each parent and any other person (including grandparents and other relatives) can provide for the children's physical, emotional and intellectual needs

- the maturity, background (including culture and traditions), sex and lifestyle of the children and of each parent, and anything else about the children that the court thinks is important

- the right of children who are Aboriginal or Torres Strait Islander to enjoy their culture (including with others of that culture)

- each parent's attitude to the responsibilities of being a parent and towards their children in general

- any family violence involving the children or a member of their family

- any family violence order that includes children or a member of the children's family - the order must have been made after being 'contested' (challenged in court) by the other person, or be a final order

- whether the orders that the parties have applied for will lessen the risk of further court proceedings

- any other considerations the court thinks important.

In looking at how each parent has participated in their responsibilities as parents, the court must consider:

- how much each parent has participated in making decisions about major long-term issues that affect the children

- how much time each parent has spent with and how they have communicated with the children, both during and after the relationship

- how the parents have encouraged or helped each other to spend time with and communicate with the children

- whether each parent has maintained the children or failed to do so, for example paying child support on time.

The court can also look at:

- the history of the relationship and the care of the children

- the events that have happened since your separation

- the circumstances that have existed since your separation.
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