Parenting Orders

Parenting Order are orders made by the court setting out the arrangements for the children of the parties and are binding on the parents. Parenting Orders (except Procedural Orders) generally cover the following:

1. Who the children will live with;
2. What time they will spend with each of the parties;
3. How decisions for the children will be made;
4. Where and how changeover will occur;
5. What phone or video call communication the children will have with each of the parties;
6. What information each party will receive regarding the children’s health and education;
7. The issue of the children travelling with both parties, including interstate and internationally;
8. What conduct will and won’t be permitted in each household when the children are in each party’s care (such as discipline strategies, alcohol use etc);
9. How the parties will communicate with and about one another.

There are three main types of Parenting Orders in family law matters:

– Interim Orders
– Final Orders
– Procedural Orders

Interim Orders are made in most matters before a Judge and last until the Court can make Final Orders or until further Interim Orders are agreed upon by the parties or made by the Court. Sometimes matters will have one set of Interim Orders from commencement of the matter until Final Orders are made, and sometimes several different sets of Interim Orders will be made at different Court events and different stages of the proceedings. Interim Orders may include all of the things listed above or they may include only some.

Final Orders are Orders which are made for the long-term, generally until the children attain the age of 18 years or until circumstances change. However, final orders can be varied at any time if the parties agree to it. Additionally, sometimes it is appropriate to include an Order in Final Orders for the Orders to be re-considered in the lead up to a significant change in the children lives (such as commencing Primary School or High School).

Final Orders can be made by consent without the parties formally commencing proceedings, or after Court proceedings have been commenced. Parties may not each need to attend Court if they are able to agree on the Orders that should be made. If agreement is reached, Consent Orders can be prepared together with an Application for the parties to sign. The signed documents are then sent to the Court for a Registrar to consider in chambers. If the Registrar is satisfied that the Orders are appropriate, they will make the Orders and notify the parties.

If the parties cannot agree about on what Orders should be made, one party will need to commence Court proceedings by filing an Initiating Application setting out the Orders they seek, an Affidavit setting out the evidence they intend to rely upon in support of their response and other required documents.

Once proceedings have been commenced Final Orders can be made by consent at any stage during the proceedings, as long as all parties to the proceedings agree to the Orders, and the Judge is satisfied the Orders are appropriate. If agreement cannot be reached the Judge will make Final Orders after a contested trial which will generally involve each party giving evidence in Court.

Interim Orders can be made by consent after Court proceedings have been commenced, by filing the same documents referred to above. Once proceedings have been commenced Interim Orders can be made by consent at any stage during the proceedings, as long as all parties in the proceedings agree to the Orders, and the Judge is satisfied the Orders are appropriate. If agreement cannot be reached the Judge will make Interim Orders after a contested Hearing, which will usually proceed on the basis of the documents that neither party will be required to physically give evidence in Court..

The court is primarily concerned with what is in the child’s best interests when making Orders. The main priorities the Court focuses on are the need for a child to have a meaningful relationship with both parents and the need for a child to be safe from any kind of physical or psychological harm, any kind of neglect or any form of family violence. These two factors are known as the ‘primary considerations’. (Section 60CC(2) of the Family Law Act 1975)(‘the Act’).

The Court will also consider other factors when making Orders, though less weight will be placed on these, as compared with the two primary considerations. The additional factors are set put in Section 60CC(3) of the Act and are known as ‘additional considerations’. Some common additional considerations are:

1. The views and wishes of the child/children;
2. The age and circumstances of the child/children;
3. The nature of the relationship between the child and each of the parents;
4. The extent to which each parent has made attempts to spend time with the child, make decisions for the child, and care for and be responsible for the child;
5. The impact to the child of a change in their circumstances;
6. The capacity of each of the parties to provide for the child’s needs;
7. The practical difficulty and expense in the child spending time with a parent;
8. Whether there has been any family violence involving the child or a member of the child’s family;
9. The child’s cultural background and in certain circumstances the children’s religion or lifestyle or the culture, lifestyle or religion of the parents.