Children's Issues

A Court may make Parenting Orders upon Application by a parent, grandparent, the child or any other person concerned with the care, welfare or development of the child. Parenting Orders can deal with a variety of different issues including:

  1. Parental Responsibility with respect to a child (ie decision making responsibility for major decisions regarding the child’s health, religious or cultural upbringing, name, education or changes to a child’s living arrangements);
  2. Where and With Whom a child lives (including the issue of Relocation);
  3. When a child will Spend Time With and/or Communicate with a parent or other person;
  4. Changeover issues, i.e who will collect the children from one party and deliver them to the other party and where will changeover take place;
  5. Orders for the return of a child when another party has taken a child in breach of an Order or without the consent of the other party;
  6. Child Maintenance.

Court Applications are usually made when parties are unable to reach agreement between themselves as to the parenting arrangements in relation to a child or children. Prior to parties applying to the Court for Parenting Orders, they must make a genuine effort to resolve their dispute by attending Family Dispute Resolution. They must file a certificate pursuant to section 60I of the Family Law Act 1975 when they file their Application to Court. There are exemptions to the requirement to file a section 60I certificate such as where there is urgency or where there has been family violence. Where there is urgency, a party can apply for an urgent hearing date.

The Court’s Approach
A Court is required to regard the best interests of the child as the paramount consideration when making a parenting Order. When determining what is in a child’s best interests, the Court must primarily consider:

  1. The benefit to the child of having a meaningful relationship with both of the child’s parents; and
  2. The need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.

In addition to the 2 primary considerations, the Court must also take into account a number of considerations such as any views expressed by the child, the nature of the relationship between the child and each parent, the capacity of each party to provide for the needs of the child, the child’s right to enjoy their Aboriginal or Torres Islander culture and any family violence of family violence Order involving the child or the child’s family. The Court has a wide discretion under this provision and may take into account any matters considered relevant.

When making a Parenting Order a Court must apply a presumption that it is in the best interests of a child for the child’s parents to have equal shared responsibility for the child. The presumption does not apply if there are reasonable grounds to believe that a parent or person living with a parent has engaged in child abuse or family violence. The presumption can be rebutted by evidence that satisfies the court that it would not be in the child’s best interest.

There may be a number of interim hearings in a case about children’s matters before a final hearing is allocated. At an interim hearing interim Parenting Orders will usually be made. In some cases it may be necessary to obtain expert reports from psychologists or other medical professionals or for subpoenas to be issued. In some cases an Independent Children’s Lawyer is appointed to represent the best interests of the children. Not every matter proceeds to a final hearing and many settle on a final basis by agreement during the Court process.

Parties must comply with Court Orders and if a party breaches an Order without reasonable excuse, the other party may file an enforcement application. If a party is found to have breached an Order without reasonable excuse the Court has the power to order one or more of a number of penalties against the breaching party.

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