If you are unable to resolve issues regarding the care and welfare of your children, and family dispute resolution has either failed or is not suitable, you have the option to apply for a parenting order.
A parenting order is a set of orders made by a court about parenting arrangements for a child after a hearing process.
Parenting orders can be issued as short-term measures during court proceedings (interim orders) and as long-term solutions once a final decision has been reached (final orders). These orders are legally enforceable, and penalties may be imposed for non-compliance.
Parenting orders may cover any of the following issues:
- Who the child will live with
- How much time the child will spend with each parent and with other people (e.g., grandparents)
- The allocation of parental responsibility
- How the child will communicate with a parent and people they do not live with
- Any other aspect relating to the child’s care, welfare, or development
A parenting order can outline the steps both parties must take before seeking to modify the order in court. Additionally, it may detail the process for resolving any disputes that arise from the order. Regardless of any changes in the needs or circumstances of you, your children, or your ex-partner, the existing parenting order remains in effect until it is replaced by a new parenting order or parenting plan. To request a modification to an existing parenting order, you must demonstrate to the court that a significant change in circumstances has occurred, making the modification necessary.
Who Can Apply for a Parenting Order?
Any of the following individuals may apply for a parenting order for a child:
- The child’s parents
- The child
- The child’s grandparent
- Any other person concerned with the child’s care, welfare, and development
How Does the Court Decide on a Parenting Order?
The court’s paramount consideration is the best interests of the child. This includes ensuring that children maintain a meaningful relationship with both parents while being protected from physical or psychological harm, as well as from abuse, neglect, or family violence. The court places greater emphasis on the necessity of safeguarding children from any potential harm.
The court considers six factors when determining parenting arrangements, which include:
- The arrangements necessary to promote the safety of the child and all individuals responsible for the child’s care
- Any views expressed by the child
- The child’s needs, encompassing developmental, psychological, emotional, and cultural aspects
- The capacity of each person with parental responsibility, whether current or proposed, to meet the child’s developmental, psychological, emotional, and cultural needs
- The benefits to the child in having a meaningful relationship with their parents and people significant to the child
- Any other factors that the court deems relevant to the specific circumstances of the child
What Happens if the Order is Not Followed?
A court order is contravened when the conditions on the order are not followed by the person named on the order. However, courts do not automatically enforce parenting orders, so when parenting orders are not followed, you can:
- Attend family dispute resolution
- Get legal advice
- Apply to the court to change or enforce the orders – make a contravention application
Location Orders
If a party in any family law parenting proceedings cannot be located, then a court may make a Location or Commonwealth Information Order. This requires other people or organisations, including government departments, to provide any information they have about where the parent and the child may be located.
Recovery Orders
If you or your ex-partner fail to return the child to the other parent in violation of a parenting order, the court may issue a Recovery Order. This order authorises all officers of the Australian Federal Police and all state and territory police officers to find and recover the child. The order may also allow a search of any aircraft, vehicle, vessel, or any other premises where the child may be found. The penalties are listed in Division 13A in the Family Law Act 1975 (Cth).
What if I think my child may be taken overseas?
If either parent wants to take their child overseas, both parents must provide permission and sign an Australian passport application if they have joint parental responsibility. If one parent refuses to sign, the other parent can apply to a court to have the passport issued. Australian courts do not have a say over foreign passports being issued by other countries’ embassies.
If you are worried that your child will be taken overseas, you need to get immediate legal advice. An urgent application to the court can be made for court orders to prohibit the child from leaving the country; this is called a family law or airport watch list order. For details on the Family Law Kit, visit the Australian Federal Police website.
Attending court
Going to court can be stressful and difficult. If you are not represented by a lawyer, you can get a non-legal support person to accompany you on your days in court or explain to you how the court system works in person or over the phone.
For further information about Parenting Orders or attending court, contact WIRE to speak to a trained support worker who can connect you with further support services.
