Who can apply for orders?
Any person concerned with the care, welfare and development of a child, can apply for parenting orders. This may include the child’s parents, grandparents or other relatives. You can apply for parenting orders at any time. You can apply before or after separation or divorce.
If you and your partner or spouse have separated and are unable to reach an agreement about the living arrangements of your children, or the other parent refuses a child to spend time with you, or limited time, you may need to make an application to the court for parenting orders.
The type of parenting orders you can apply to the court to make
Parenting orders may include orders relating to:
The person with whom the child lives – including any shared arrangement
The times that a child may spend time with – a parent with whom they are not living, or anyone else who plays an important part in their life, such as a grandparent and can be either face to face, or by telephone, email or letters
Child maintenance – for children not covered by the Child Support (Assessment) Act
Any other aspect of parental responsibility – these may include the day to day care, welfare and development of the child, religion, education, medicals and sport
Attending mediation before applying for parenting orders
The parties are required to attend mediation prior to applying for parenting orders, unless an exemption applies.
If a parent refuses to attend mediation, or both parents attend mediation and no agreement about parenting arrangements of your children are able to be reached, the family dispute resolution practitioner will issue a certificate in accordance with section 60I of the Family Law Act 1975 (Cth), which allows the parents to initiate court proceedings seeking parenting orders from the court.
The section 60I certificate is valid for 12 months and after this date if proceedings are not initiated in court, the parties will need to re-engage in further family dispute resolution.
Exemption to attend mediation
Under Section 60(9) of the Family Law Act 1975 (Cth), you can seek an exemption from providing a certificate in the following circumstances:
If you are seeking to apply for an exemption for any of the reasons above in the Family Court, you must either:
If you are seeking to apply for an exemption for any of the reasons above in the Federal Circuit Court, you must either:
The party initiating the proceedings is known as the applicant and the other party is the respondent. The respondent is required to file responding material, which also includes interim and final orders and an affidavit in support. If the respondent does not file responding court material, the orders that the applicant is seeking may be made in the applicant’s favour, subject to the court’s view as to whether the orders sought are in the best interests of the children.
Interim and Final Orders
The interim orders are the parenting orders that is sought to occur on an “interim basis”, up until finalisation of the court proceedings.
Interim orders may include:
Orders sought for the upcoming school holidays
Time spent arrangements with the children on their upcoming birthdays, or a parent’s birthday
Arrangements for Christmas (if this near approaching)
A procedural order may include whether the parents are to attend a child conference with a court appointed family consultant, and if the children are of a mature age, the conference may be child inclusive. A child inclusive conference allows the children to participate in the process by expressing their view and wishes as to their living arrangements with their parents.
The family consultant will prepare a memorandum to the court and to the parties following their interviews with each parent, the children (if they are of at an age to participate), and any other related parties in the proceedings. The court will have regard to the memorandum in deciding the interim orders to be made.
Throughout the court process, another procedural order that the court may order is that the parties attend upon a family consultant for the purposes of the preparation of a family report.
This report will be provided to the court in assisting the court to determine orders to be made on a final basis.
If the children are of an age where they can participate and express their views as to who they seek to live with and spend time time with, this will be included in the family report for the court’s consideration.
The family consultant can make recommendations to the court as to the time spent arrangements that they consider are in the best interests of the children to spend time with each parent.
The family consultant may be called as a witness to provide evidence in court as to their recommendations and any content contained within the family report.
The final orders that are sought and the court determines includes a more broad scope of orders, which may include:
The best interests of the child is the courts paramount consideration
The court cannot make orders unless the orders are in a child’s best interest. It is important to note that the orders that you are seeking must be age relevant and in the children’s best interests. For example, for a young child under 2 years of age, it may not be in the child’s best interests to be spending 7 consecutive nights with one parent and 7 consecutive nights with another parent. However, such arrangement may be suitable for an 8 year old. Each parenting case needs to be assessed on a case by case basis.
Should the matter proceed to a final hearing, subject to the complexity of the case, further trial affidavit material is required to be filed within a specific time frame and the court will allocate a set number of days for the trial.
It is not uncommon for a court to allocate 1-2 days or more (subject to the complexity of the case) for parenting matters. Upon the court hearing all of the evidence, the court will make determine the orders that are in the best interests for the children for parenting matters on a final basis, and will provide their written decision.
When orders are made on a final basis, the court may not vary any of the order proposed to be changed, and/or may not proceed to hear the application, unless a substantial and significant change occurs.
If you require assistance with initiating court proceedings or responding to an initiating application, feel free to book a complimentary appointment with an experienced family lawyer of our team or give us a call on 1300 001 298.