Author: Vanessa Mathews

Parents are expected to have attempted family dispute resolution before applying for Court Orders. Family dispute resolution participation is not required if there has been abuse of a child by one of the parents or if there has been family violence.

An application for a parenting order may be made by the child’s parents, the child, a grandparent or any other person concerned with the welfare and development of the child.

The main consideration of the Court is whether the arrangements implemented by the parenting order are in the best interests of the child.

The court presumes the best interests of the children are served by the parents having ‘equal shared parental responsibility’, but it will look at what is best for the children in each case.

Where there is family violence or child abuse involving one of the parents or a person who lives with a parent, this presumption does not apply.

Grandparents (or with an ongoing relationship with the children) can apply for an order to spend time with them.

As long as it is in their best interest, children have a right to spend time with significant people in their lives.

Grandparents must show that an order to spend time with the children is in the best interests of the children. They also may need to attend family dispute resolution before they can apply to the Court.

A court can make orders about:

• which parent a child lives with;
• how much time a child spends with the other parent;
• how a child communicates with a parent;
• parental responsibility.

A parenting plan made with the other parent is not enforceable, if you go on to court the court will have to consider the most recent Parenting Plan.

The court will also consider whether both parents have met with their obligations including the terms of a Parenting Plan.

The parenting plan can be made enforceable by asking the Court to make Consent Orders.

The Family Law Act aims to ensure that the best interests of children are met by:

• ensuring children have the benefit of both their parents having meaningful involvement in their lives;

• protecting children from physical or psychological harm;

• ensuring that children receive adequate and proper parenting; and

• ensuring that parents meet their responsibilities towards their children.

Many separated parents have informal agreements in place about the parenting of their children. The parents reach agreement with or without the help of mediation or counselling services. Neither parent can enforce an informal agreement against the other.

Parents can also apply for court orders by consent. Agreement is usually reached through negotiation between the parents with the assistance of dispute resolution practitioners or lawyers.

Seek legal advice before reaching any agreement about where the children live and where they spend their time, these arrangements can influence property settlement matters and child support.

Each of the parents of a child has parental responsibility for the child, however a court may make an Order to override this. For example, a court may give one parent sole parental responsibility for decisions concerning a child’s education.

Where there is an Order for equal shared parental responsibility then the parents must make joint decisions about major long term issues, such as education, religious upbringing and major medical treatment.

The mother of a four year old child had difficulties finding employment in Mt Isa and therefore wanted to return to live in Sydney. Despite the limited employment prospects for the mother, a Federal Magistrate ordered the mother and father should have equal shared responsibility, this meant the mother would continue to live in Mt Isa. It was not until the mother took her appeal to the High Court that the importance of an order being reasonably practicable was highlighted and the court agreed with the mother that living in Mt Isa was not reasonably practicable for her and therefore not in the best interests of the child.

There may be circumstances where you may require an injunction or a restraining order. This is a court order to stop someone from doing something which may disadvantage you, such as stopping your spouse/partner from withdrawing savings out of a bank account or taking the children overseas or moving the children’s residence or school without your consent.