Parenting Orders: an essential guide

Parenting orders: an essential guide 

When separated parents are unable to agree on the arrangements for the care of children, and mediation has not been able to resolve the issues, they can apply for a parenting order from the Court.

A parenting order is legally binding and outlines which parent or parents will have responsibility for their children covering, for example, who the children will live and spend time with.

In the absence of an order stating otherwise, there is a presumption in law that both parents have joint responsibility for their children. In practice, this means that the parents should consult each other about key decisions affecting the children’s welfare and care, including health and educational matters.

In cases where there have been instances of violence, or a parent has engaged in child abuse, it may be possible to seek an order for sole parental responsibility. To do so will require evidence as to why it would be in the best interests of the children for them to have sole parental responsibility.

What should a parenting order include?

Parenting orders will deal with the following types of issues:

- who the children will live with;

- how much time the children will spend with each parent;

- how parental responsibilities are to be allocated;

- which decisions will be taken jointly;

- how the children will communicate with a non-resident parent;

- daily transport arrangements;

- coping with the children’s sporting and social commitments;

- holiday and birthday arrangements;

- any other aspects relating to children’s welfare, care or development.

What does the Court consider in making a parenting order?

When making a parenting order, the main consideration of the Court is whether the suggested arrangements are what are best for the children. In making their assessment, the Court will consider primarily:

-the benefit of a meaningful relationship with both parents; and more significantly:

- the need to protect the children from physical or psychological harm, abuse, neglect, or family violence.

In addition, the Court has wide discretion to consider additional matters relevant to a parenting order. These can include but are not limited to:

- any views expressed by the children themselves, bearing in mind their age, maturity and understanding;

- the relationship the children have with each parent;

- the effect on the children of any changes in their usual routine;

- whether illicit substance or alcohol abuse is evident;

- instances of family violence;

- each parent’s ability to provide for the children’s emotional and intellectual needs;

- each parent’s capacity to care for the children, taking into account their working hours and the practicality of them being able to care for the children;

- the maintaining of relationships with important people in their lives, such as grandparents.

How long does a parenting order last or are they ‘final’?

If an application has to be made urgently because, for example, there is a risk of a child being abducted or relocated, the Court may make an interim order which will last until a specified date or event.

A final parenting order usually lasts until the child becomes 18. Family circumstances do change, of course, and, for example, as children mature, their ability to have input to the arrangements can be important.

Parenting orders can be changed by agreement between the parties involved. Without such agreement, an application to the Court will need to establish a significant change in circumstances compared to when the order was made.

What if a child refuses to see a parent?

Children under 18 cannot legally refuse to see a parent following separation or divorce. However, a Court may look at a child’s maturity and give weight to their opinion. Usually, this means a child will probably be around aged 12 for their view to be considered by the Court. The reason for a child’s refusal to see a parent can be significant: for example, if it is because of abuse, or there are persistent conflicts and disputes between parents that are disturbing them.

What happens if a parenting order is breached by one party?

A breach occurs when a person:

- intentionally fails to comply;

- makes no reasonable attempt to comply;

- intentionally prevents compliance with an order;

- aids or abets a contravention by a person who is bound by an order.

Breaching a parenting order can have a range of consequences depending on the seriousness of the breach, including variations in the child arrangements, fines, contact enforcement orders and even a custodial sentence in extreme circumstances.

When a contravention occurs, the only acceptable defence is that there was a ‘reasonable excuse’ such as believing that it was necessary to protect the health and safety of a child. The Court has wide discretion as to whether such a defence will be successful.

‘Equal time’ Arrangements in a parenting order

The Court has discretion to determine whether an order for the parents to spend equal time with the children would be in the children’s best interests or should the children live primarily with one parent. Would it be practicable, for example, that the children spend equal time with each parent or would ‘substantial and significant time’ with a non-resident parent be more appropriate? These arrangements might cover weekends, holidays, daily routines and significant occasions. Considerations include:

- the distance between parental homes;

- the capacity to implement such arrangements;

- the ability to communicate with each other;

- the impact of the orders on the children;

- any other matters the Court considers relevant.

What is a parallel parenting plan?

Parallel parenting involves parents who refuse to communicate with each other: for example, if one parent believes the other to be too controlling or there are clashing parenting styles. A parallel parenting plan is an out-of-court arrangement and is not legally binding. Although not ideal, the approach can work for some disputing couples.

Contact our Family Law Lawyers based in Sydney, NSW

Szabo & Associates Solicitors are experts in all matters relating to family law. If you require assistance with your parenting orers, other care arrangements, or any other family law issues, please contact us on 02 9281 5088 or complete the online contact form.