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Parenting Matters in Family Law

In parental matters, children have 'rights'. Parents have duties, responsibilities, and authority in relation to their children.

Unless there are 'Parenting Orders' made by a family court (such as Federal Circuit and Family Court of Australia—FCFCOA) that alter a parent's responsibility, both parents have shared 'parental responsibility' for their under-18 children. 

What is 'Parental Responsibility'?

Parental responsibility means all the duties, responsibilities, powers, and authority that a parent can legally exercise over their child. This may include, for example, making decisions regarding their education, medical treatment, following a particular religion, living arrangements, and so on.

parenting family law | child custody

Why Parenting Orders May Be Necessary?

There may be situations where divorced or separated parents may be unable to agree on arrangements impacting their child. For example, parents may find it difficult to agree on a particular school for their child or they may disagree as to with whom the child should live post-separation, and so on. In such cases, the only available course for them might be to seek parenting orders from the court to resolve these disputes between parents. Such parenting orders may decide, for example:

  1. which parent the child must live with

  2. how much time the child must spend with each parent and other family members (such as grandparents)

  3. the allocation of parental responsibility to each parent

  4. how the child will communicate with the parent the child does not live with (or any other family members, such as grandparents)

  5. A mechanism to resolve any disputes arising from a parenting order

  6. Any other aspects of the child's care, welfare, and development.

Once a court makes a parenting order and it takes effect, the parents must ensure compliance with it. Once made, a parenting order remains in force until it is amended or vacated by the court or by operation of law. Parties cannot change a parenting order merely by agreeing to an alternative arrangement (unless the parenting order expressly allows the parties to do so).

Interim Parenting Orders

A court may make an interim order if a critical issue needs to be addressed on a priority basis. However, interim orders are only temporary (that is, until the final orders are made by the court). You may wish to seek interim orders, for example, where you have serious concerns regarding the safety and security of your child or where you fear that your child may be removed or relocated to another jurisdiction.

When Can You Apply For Parenting Orders?

Before a party applies for parenting orders in the Federal Circuit and Family Court of Australia, they must satisfy mandatory 'pre-action procedures'. These procedures require you to do the following before going to court:

  1. make a genuine effort to consult with the other party to resolve the issues in dispute; and

  2. lodge a certificate issued by a Family Dispute Resolution Practitioner (FDRP) pursuant to section 60l of the Family Law Act 1975.

However, if there are concerns or a history of family violence or child abuse, the court may exempt a party from complying with pre-action procedures.

There are other instances in which a party is not required to provide a section 60l certificate. For example, where a party seeks only:

  • interim orders

  • financial orders

  • consent orders

  • Hague Abduction Convention orders

  • Child support

  • an amended application relating to a child (that is the subject of an existing application)

 

Failure To Comply With Parenting Order

Unless there is an acceptable and reasonable excuse for not complying with a parenting order, there may be serious consequences for the party that failed to comply. Depending upon the seriousness of non-compliance with a parenting order, a court may:

  • make orders to vary the existing parenting order

  • require the party to attend a parenting program

  • make orders to compensate the party that lost time with a child as a result of contravention

  • make orders to compensate the innocent party for reasonable expenses incurred as a result of contravention

  • require a bond

  • make an order against a party to pay the legal costs of the innocent party

  • make orders requiring the guilty party to participate in community service

  • impose a fine

  • sentence the guilty party to imprisonment.

Need More Information?

You can visit the website of the Federal Circuit and Family Court of Australia, which provides very detailed and helpful information about parenting orders and related issues.

Warning! No information provided on this website in relation to Australian laws, policies, procedures, directions (or any other matter) is intended to be legal advice. The relevant laws, policies, procedures, etc., for specific types of proceedings, may differ from jurisdiction to jurisdiction. You must seek legal advice on issues specific to your situation and circumstances. Please read our Terms and Conditions.

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