Children and Parenting

Following separation, many couples are able to come to an agreement between themselves about arrangements for the care of their children. However, often there can be disputes about these parenting arrangements. When parents cannot agree about arrangements for the care of their children, it is prudent to seek legal advice so that parents can reach a resolution that is practical and appropriate for them.

Parental responsibility

Parental responsibility is the term used in family law to refer to the major long-term decisions that parents make for their children.

It can include decisions about:

• the child’s current and future education (for example, where they will go to school);
• the child’s health and medical needs (for example, medical procedures);
• changing the child’s name; and
• the child’s cultural and religious upbringing.

Parents who have equal shared parental responsibility must make major long-term decisions about their children jointly.

Where one parent has sole parental responsibility of the child, they do not need to consult with the other parent to make these kinds of major long-term decisions.

Equal shared parental responsibility

While there is no presumption that parents have equal shared parental responsibility of their children, the law is clear that except in rare circumstances, parents should have shared responsibility for their children.

Sole parental responsibility will be considered and granted in rare circumstances, such as if there are reasonable grounds to believe that a parent of the child has engaged in abuse of the child (or any other child) or family violence or if the court is satisfied that shared parental responsibility would not be in the best interest of the child.

Parenting agreements

Parenting agreements, or parenting plans, are informal agreements made between parents as to the day-to-day arrangements for their children. They can be a great option if you and your former spouse are on amicable terms and are able to communicate appropriately with each other post-separation.

Parenting agreements can be altered or revoked at any time by either party. They are not legally binding.

Parenting orders

Parenting Orders are orders of the court that provide for parenting arrangements, and as such, they are legally binding.

Although they are called ‘Parenting Orders’, anyone concerned with the care, welfare or the development of the child can apply to have Parenting Orders made (for example, grandparents or guardians).

Parenting Orders can be made on an interim or final basis.

Interim Parenting Orders are temporary arrangements put in place until the parties reach an agreement or proceed to a final trial.

Final Parenting Orders are final arrangements put in place by the court. They can only be altered in limited circumstances.

Parenting agreements and orders can deal with a number of issues surrounding arrangements for the care of children, including:

• who the child lives with;
• where the child lives;
• who the child will spend time with (and where and for how long);
• how the child is to communicate with another person; and/or
• any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for the child (for example, a change of name or where the child will attend school).

When making Parenting Orders, the court’s paramount consideration is the best interests of the child.

‘Best interests of the child’

The paramount consideration that courts must take into account when making Parenting Orders is the best interests of the child.

The general considerations in determining what is in a child’s ‘best interests’ are:

• The need to promote the safety of the child and each person who has care of the child, whether or not this person has parental responsibility of the child (including safety from family violence, abuse, neglect or other harm).
• Any views expressed by the child.
• The developmental, psychological, emotional and cultural needs of the child.
• The capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs.
• The benefit to the child of being able to have a relationship with the child’s parents and other people who are significant to the child, where it is safe to do so.
• Anything else that is relevant to the particular circumstances of the child.

Further considerations specific to Aboriginal or Torres Strait Islander children will also be taken into account by the court and are prescribed under the Family Law Act 1975 (Cth) :

• The child’s right to enjoy their Aboriginal or Torres Strait Islander culture by having the opportunity to connect with, and maintain their connection with, members of their family and with their community, culture, country and language.
• The likely impact of any proposed parenting order on the child’s right to enjoy their Aboriginal or Torres Strait Islander culture.

Varying parenting arrangements

Parenting agreements/parenting plans are not legally binding, and can be made at any time as agreed between the parties. They are a flexible option for parties not wishing to lock themselves into a binding agreement.

Final Parenting Orders, however, are orders of the court and must be complied with.

For an application to vary Parenting Orders to be successful, the applicant must be able to show:

• There has been a “significant change in circumstances”; AND
  
  
• It is in the child’s best interests for the Final Order to be reconsidered; OR
  
  
• There is agreement from all parties to the Final Order, even if there has not been a significant change in circumstances or it is not shown to be in the child’s best interests.

This is so parents and children are not continually subjected to the court process to re-determine issues already dealt with previously.

It is not enough that there has been a change in circumstances – for example, the children growing older. The change must be significant enough to convince the court to re-determine the issues. This area of law is often complex and will be unique for every family. It is recommended you seek legal advice first if you want to apply to the court to change Parenting Orders.

Enforcement of Parenting Orders

A Parenting Order is the same as any other court order. There are serious consequences for failing to comply. The court can penalise someone who breaches the order if they do not have a reasonable excuse for doing so.

For Parenting Orders that are just not working, parties can attend family dispute resolution (mediation) to try and reach a solution.

If this is not appropriate in the circumstances, the court can make an order to change the existing order, make an order for costs, impose a fine, make an order to attend a parenting program or even impose a jail term of up to twelve months.