Monday, September 27, 2010

PARENTING ORDERS AND EQUAL SHARED PARENTAL RESPONSIBILITY

PARENTING ORDERS AND EQUAL SHARED PARENTAL RESPONSIBILITY

PARENTING ORDERS

A: Compulsory Mediation

From 1 July 2008 parties applying for parenting orders are required to attend compulsory mediation and obtain a certificate from an accredited family dispute practitioner or mediator, except where there is child abuse, family violence or in matters of urgency.

Families will attend a joint dispute resolution session at a Family Relationships Centre.  If more time is needed, parties may be referred to another service or continue at the FRC.  Fees will be charged after 3 hours to those who can afford to pay.

These changes affect persons making a new application to the Family Court for a parenting order after 1 July 2007.  For a list of providers, call the Family Relationships Advice Line on 1800 050 321. (For further assistance, contact Dean R Love & Associates  : Tel (08) 9218 9993 or Email enquiries@drllegal.com.au).

B: Preliminary Considerations


Divorce can be a very distressing process not just for the parties involved but also for close family members.  It is important to comfort your children through the process and make sure they understand what is going on and that it is not their fault.  It is most important to keep the interests of the children in mind and ensure that they suffer as little as possible both during the divorce and in whatever arrangements are made for them subsequently.

Once you have separated from your spouse or partner, it is important to make suitable living arrangements for the children and ensure that both parents have contact with them. Children need certainty and stability.  They are more likely to be able to adapt to a new situation if arrangements can be out into place as soon as possible and without animosity.

If you and your partner can reach agreement about the parenting of your children, where they should live and what contact they should have with the other parent, then you may wish to formalise that agreement by applying for a Consent Order from the Family Court.  (Dean R Love & Associates can  draft Consent Orders for you : Tel (08) 9218 9993 or Email enquiries@drllegal.com.au).

If parents cannot agree about the parenting of their children, then an application can be made to the Family Court for its assistance in resolving disputes.  Through the Court process, the Family Court will encourage parents to reach their own agreement about the children but ultimately, if parents are unable to agree, the Family Court can make Parenting Orders about a child.


C: Parenting Orders

Parenting orders can deal with one or more of the following: -
  • where the child is to live
  • the time a child is to spend with another person(s)
  • the allocation of parental responsibility for a child
  • if 2 or more persons are to share parental responsibility then how they are to consult to share that responsibility
  • who a child communicates with
  • child maintenance
  • what steps are to be taken if the order is to be varied

Who can apply?

An application can be made by either or both of the child’s parents, the child, the child’s grandparents
or any other person concerned with the care, welfare and development of the child. Orders can be made
by the Family court, Family court of WA (WA only) Federal Magistrates court or Magistrates (Local) court.

D: Parenting Orders & Parenting Plans

Parenting Orders are directions made by a Court about a couple’s parental responsibilities and includes Consent Orders once filed with the Court.  When a parenting order is made, each person affected by the order must follow the order.

Parenting Plans, on the other hand, are any agreement on parenting issues, written, signed and dated by the parties.  Parenting orders are subject to any subsequent Parenting Plans (unless the Parenting Plan was made under threat, duress or coercion).  However, Parenting Plans are not legally enforceable in contravention proceedings as they are not an order of the Court.  Thus, if a party breaches a Parenting Plan it is not possible bring contravention proceedings. Many lawyers consider parenting plans to be of very limited use except to parties who are very amicable and likely to abide by any agreement reached.

E: Contraventions of Parenting Orders

The Court now has wide powers to deal with those who breach the terms of a parenting order.  The Court has the power to issue a warrant for the arrest of a person if there are reasonable grounds to believe that they have contravened the terms of an order and if the court is satisfied that a warrant is necessary to ensure that the person attends court. If a person is found to have breached the order without a reasonable excuse, the court has a wide range of powers depending on the circumstances of the breach i.e. from varying the terms of the order, to ordering the parties to attend a parenting course and even in certain circumstances to imposing a period of imprisonment.


Equal shared parental responsibility

F: Equal shared parental responsibility

On 1 July 2006, the Family Law Act 1975 was amended by the Family Law Amendment (Shared Parental Responsibility) Act 2006 to introduce a presumption of equal shared parental responsibility in the upbringing of children and to provide a more informal structure for resolving the issues which result from family breakdown. The changes are based on the principles that children have the right to know both parents and be protected from harm.  The presumption however does not apply if there has been child abuse within the family or family violence.  Shared parental responsibility creates an obligation on both parents to consult and reach decisions together on long term issues relating to the child such as education, religion, culture and health.

G: Amount of time a child spends with each parent

If a parenting order states that parents are to have equal shared parental responsibility for a child, the

Court must consider:

1.       Whether it would be in the best interest of the child to spend an equal amount of time with each parent and whether this is reasonably practicable.
2.       If the court does not make such an order, it must consider whether it would be in the best interests of the child to spend substantial and significant time with each of the parents and whether this is reasonably practicable. Substantial and significant time means that:
  • The child spends both weekend and holiday days; and days which do not fall on weekends and holidays with the parent and
  • the time spent allows the parent to be involved in the child’s daily routine and occasions/events of particular significance to the child and occasions/events of particular importance to the parent.
There has been a widespread misunderstanding that shared parental responsibility means that children will spend an equal amount of time with parents as a matter of course.  Clearly this will only happen if it is, most importantly, in the child’s best interests and if reasonably practicable.

H: Factors to determine what is reasonably practicable

  • how far apart the parents live
  • the parent’s current and future capacity to implement such an arrangement
  • the parent’s current and future capacity to communicate with each other and may resolve any
  • difficulties which may arise
  • the impact of the arrangement on the child
  • any relevant matters
The Court has the power to make order parties to attend family counselling, family dispute resolution or to attend courses to assist with communication.

I: Family Relationship Centres

As at August 2008 the federal government has established Family Relationship Centres across Australia.   Specially trained staff at the centres will offer families information at all stages of their relationship, provide assistance for separating couples and provide dispute resolution services to keep separating families out of court. The centres have been funded to provide a free 3 hour joint resolution session before any legal advice is sought.  The FRCs will not offer any legal advice.  The aim of the centres will be to focus on cooperation rather than litigation and to encourage separating
couples to agree on what is best for their children. 

J: Centre Locations

The 24 new Centres bring the total number of Centres operating in capital cities and regional areas to 64 including at the following locations:
  • NSWBankstown, Bathurst, Coffs Harbour, Dubbo, Erina, Lismore, Northern Beaches, Parramatta, Penrith, Sutherland, Sydney CBD, Tamworth, Taree and Wollongong
  • VIC  - Broadmeadows, Chadstone, Frankston, Melbourne CBD, Mildura, Ringwood, Shepparton, Warrnambool and Sunshine
  • ACTCanberra
  • TAS – Hobart
  • SAAdelaide, Mt Gambier and Salisbury
  • QLD – Bundaberg, Chermside, Logan, Mackay, Strathpine, Toowoomba and Townsville
  • WA – Bunbury, Midland, Joondalup and Perth CBD
  • NT – Darwin.
For more information on the available resources, please visit http://www.familyrelationships.gov.au/ or call
1800 050 321.

K: Court services

The Family Court and Federal Magistrates Courts Registries are being combined and will be called the
Family Law Courts Registry.  (www.familylawcourts.gov.au.)  The court’s processes will change over time so that the procedures set down in Division 12 A of the Family Law Act for child - related proceedings will be conducted in a more informal way from the start of proceedings. The final hearing will not be conducted as a trial. The judge will determine what issues are relevant and will give directions as to what evidence needs to be provided.  The proceedings will be focused on the best interests of the child and the parties’ parenting proposals for the future.

L: Best interests of the child

In making a Parenting Order, the court must consider what is in the best interests of the child as the
paramount consideration.  The court must consider primary and then additional factors.
The primary considerations are the benefit of the child of having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm.

The additional considerations are as follows:
  • any views expressed by the child
  • the nature of the child’s relationship with the parents and other persons (including relatives)
  • the willingness and ability of each parent to facilitate and encourage a close continuing
  • relationship between the child and the other parent
  • the likely effect of any changes in the child’s circumstances
  • the practical difficulty and expense of a child spending time and communicating with a parent
  • the capacity of the child’s parents and other persons to provide for the needs of the child
  • including emotional and intellectual needs
  • the maturity, sex, lifestyle and background of the child and either of the child’s parents
  • if the child is Aboriginal or Torres Strait Islander, the child’s right to enjoy their culture and
  • the impact of the order on that right
  • the attitude of the parent to the responsibilities of parenthood
  • any family violence or family violence order
  • any relevant fact or circumstance.
The court must consider the extent to which each parent has taken (or failed to take) the opportunity to
participate in making long-term decisions about the child, to spend time with the child and to
communicate with child; and also how the parent has facilitated the other parent to take these
opportunities.





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