Regardless of their relationship status (i.e. married, never married, separated or divorced) all parents have legal responsibility for their children aged under 18, unless a family law court orders otherwise. What follows is a brief description of the types of orders that the Family Law Courts can make with regard to children. All orders relating to children are known as 'parenting orders'. Parenting orders cover all aspects of care and welfare arrangements for children.
Applications for parenting orders can be made in the Federal Circuit Court or the Family Court.
Terms such as “contact” and “residence” were used previously but the court now uses the terms “spends time with” and “lives with”.
If you have a court order that was made prior to the 1st July 2006 it will use the terms “residence” and “contact” and, unless you make a new agreement or the court makes a new order, these changes will not affect how your orders work.
Other specific types of parenting orders include:
- Location Order — to find where a child is living
- Recovery Order — to return a child to a party
Equal shared parental responsibility
When the court makes orders concerning children it must always consider the ‘best interests of the child’ [Family Law Act 1975 s 60CA]. The court is to presume that it is in the best interests of the child for the parents to have ‘equal shared parental responsibility’ [s 61DA]. This is a starting point for the court’s decision-making process and the court may determine, in the circumstances of an individual case, that shared parental responsibility is not appropriate.
Equal shared parental responsibility means that both parents share the right to make major long term decisions about the children of the relationship. If a parenting order says that both parents have shared parental responsibility, then the parents should talk to each other and make a genuine effort to make major long term decisions regarding the children themselves. Shared parental responsibility does not include day to day decisions about children such as what they wear.
Equal shared parental responsibility is different to a child spending equal time with both parents. If the court presumes that the parents should have equal shared parental responsibility, it must look at whether spending equal time with each parent would be in the child’s best interests and also whether it is reasonably practical.
Substantial and significant time
Where equal time is not appropriate, the court must look at whether an order for ‘substantial and significant time’ is a practical alternative and in the best interests of the child. ‘Substantial and significant time’ means that the child spends time with a parent on weekends, holidays and weekdays so that the opportunity exists for time to be spent together in daily routine activities and also for events that are important to the child such as sporting events, birthdays and school activities.
In deciding whether an order should be made for either equal time or substantial and significant time, the court will consider the following:
- how far apart the parents live from one another
- each parent’s ability to care for the child currently and in the future
- the ability of both parents to talk to each other and resolve any difficulties they might face with parenting arrangements, both currently and in the future
- how either arrangement will affect the children
- anything else that the court thinks is important.
The Commonwealth Attorney General's Department have a comprehensive guide Parenting Orders - what you need to know PDF
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