Parenting after separation

11 Aug 2016 - 11:10 | Version 15 |

Contributed by AnneleiseHey, JaquiePalavra and AditiSrinivas and current to 1 May 2016

The law governing parenting after separation is contained in the Family Law Act 1975 (FLA). Children don't have to be the children of a marriage to be covered by the Act; it applies to the children of all parents, whether their parents are married or not. A child only has to be in Australia, an Australian citizen or ordinarily living here, as must at least one of their parents.

Although parenting disputes can involve a range of people in a child's life, including grandparents and other relatives, most residence and contact issues arise between parents so the language of this section reflects this fact.

Both the Family Court and the Federal Circuit Court apply the same law, which is the Family Law Act. The courts have four broad aims when making orders that relate to children:
  • ensuring that children have the benefit of both parents having a meaningful involvement in their life
  • protecting children from harm by being subjected to abuse, neglect or family violence
  • to make sure that children are parented adequately so that they may achieve their full potential
  • to make sure that parents meet their responsibilities towards their children.

The following principles are used:
  • children have the right to know and be cared for by both of their parents even if their parents have separated
  • parents jointly share duties and responsibilities towards their children
  • children have a right to have contact with significant persons in their life
  • parents should agree about the parenting of their children.

Old words, such as guardianship, custody and access, or residence and contact are no longer used in the Act, although they are still used by people in the community. These terms have been replaced by parental responsibility and who the children live with and spend time with.

Parental responsibility

Both parents, irrespective of whether they are or are not married, have parental responsibility for a child. Parental responsibility is defined as all the duties, powers, responsibilities and authority that parents have in relation to their children [FLA s.61B]. These powers are not clearly defined by the Act, but could include decisions about a child's religious upbringing, education and medical treatment.

When a couple with children separates, both parents are expected to continue to exercise their parental responsibility. Unless a court order specifically provides otherwise, both parents retain parental responsibility. For example, if a child is spending time with a parent and requires medical treatment, that parent can obtain such treatment without the consent of the other parent. However, if a child suffers a serious injury or illness, regardless of which parent is caring for the child at the time, a court would expect that parent to advise the other parent as soon as practicable.

Parental responsibility can only be modified by the Family Court or Federal Circuit Court when making parenting orders (see Parenting orders ). The court can make Orders that both parents continue to share parental responsibility, that one parent have sole parental responsibility, or give parental responsibility to someone who is not a parent if that is in the child's best interests.

When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of a child for the parents to have equal shared parental responsibility [FLA s.61DA]. If, however, there are reasonable grounds to believe that a parent of the child, or a person with whom the parent lives, has engaged in family violence or abuse of the child or another child, then the presumption does not apply. It is also possible for evidence to rebut the presumption, although this would usually not be until after there has been a trial and all the evidence has been tested.

Making arrangements without going to court

Agreeing about the children

When parents decide to live apart, they are generally able to agree on where their children will live without taking the matter to court. A solution reached by agreement will usually suit everyone better than a decision imposed by the court. Usually, parents are better positioned than a court to work out the arrangements that best suit their children. In addition, court proceedings can be upsetting, drawn out and expensive. The law encourages parents to work together to resolve matters regarding the care of their children rather than resorting to court action [FLA s.63B].

There is no obligation for parents to write down the arrangements that they make about the care of their children. Some parents never do. However, many parents choose to keep a written record of what is agreed between them in the form of a parenting plan, while others prefer consent orders.

Parenting plans

A parenting plan is a written document that sets out the arrangements the parents have agreed to in relation to the involvement each will have with their children, where the children will live, how they will be maintained and each parent's responsibilities [FLA s.63C(2)].

Third parties, such as grandparents, may also be parties to a parenting plan.

A parenting plan must be made free from any threats or coercion [FLA s.63C(1A)].

What should a parenting plan cover?

A parenting plan must include details (name, age, and place of residence) of each child, and should be dated and signed by all parties [FLA s.63C(1)].

A plan should also include arrangements about:
  • housing
  • supervision
  • financial support
  • health, including any health problems or disabilities
  • education.

Parents should try to agree on as many issues as possible to leave less scope for future disputes should communication between them break down.

A parenting plan is not legally binding

If parents agree on a parenting plan, the plan doesn't need the approval of a court. Once it is signed and dated by both parents and/or anybody else who is a party to the parenting plan, each person should be given a copy of the parenting plan so that they all have a record of what is agreed.

A parenting plan is not legally binding; that is, it cannot be immediately enforced by the courts and there are no penalties for breach. It is an agreement made between the parents in good faith, and each parent, or party to the plan, is expected to follow it. However, if one parent doesn't follow the parenting plan, and the other parent asks the court to make a parenting order, the court may consider the terms of the parenting plan when it makes decisions about the arrangements for the children.

If parents want their agreement to be legally binding, they can apply for the court to make consent orders (see Consent orders).

Changing arrangements

A parenting plan can be changed at any time by making a new informal agreement, parenting plan or by asking the court to make a parenting order (see Parenting orders ).

A consent order is an order a court makes when the parties to the proceedings agree to the orders being made. There are different situations in which the Court will make consent orders:
  • the parents make a joint application to the court or for an agreement to be made into consent orders. An application for a consent order must be lodged on the appropriate form, available in the Consent Orders Kit, and signed by both parties.
  • one parent applies to the court for parenting orders (see Arrangements made by the courts). During the course of the proceedings, the parents reach an agreement. The parents can ask the judge to make orders that reflect that agreement.

Once made, a consent order can only be varied by the parties agreeing to a new order or by the court. A court will only change a consent order if both parties agree or if the circumstance of either party has altered substantially (see Varying a parenting order) and the change would better promote the child's welfare (see What must the court consider).

The process for making consent orders can be the most simple and inexpensive method for making arrangements for children. Consent orders are legally binding and the court can enforce the orders or issue penalties for breach (see Enforcing parenting orders). Orders that are made by consent have the same standing as orders that are made by a judge when the parents can't agree (see Arrangements made by the courts).

Agreements involving third parties

Sometimes parenting agreements include people other than parents, such as grandparents or aunts and uncles. Consent orders may also include people other than parents. If a proposed parenting order contemplates a child living with someone other than a parent, or places obligations on the third party, then they should be included in discussions about the arrangements; whether the discussions occur informally, or before the court. If the court is making an order (whether or not by consent), the court must be satisfied that the order is in the best interests of the child.

Arrangements made by the courts

Parenting orders

A parenting order is an order that assigns to a person certain duties, powers and responsibilities with respect to a child [FLA s.61D]. There are several different types of parenting orders a court can make:
  • Orders setting out with whom a child will live and during what periods.
  • Orders setting out with whom a child will spend time and during what periods.
  • Orders setting out with whom a child will communicate, possibly including when and in what fashion.
  • Other orders that relate to the care and welfare of a child, especially orders that the court considers necessary to keep the child safe.

Who can apply for parenting orders?

An application for parenting orders can be made by:
  • a parent
  • the child
  • a grandparent of the child
  • any person concerned with the care, welfare and development of the child [FLA s.65C], provided the parents are involved with the proceedings.

What must the court consider?

In making a parenting order, the court's paramount concern is what is in the best interests of the child. The court has to take a range of factors into account. These factors are set out as 'primary considerations' and 'additional considerations' [FLA s.60CC]. Primary considerations are:
  • the benefit to the child of having a meaningful relationship with both parents
  • the need to protect a child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. The court must give greater weight to this primary consideration [FLA s.60CC(2A)].

Additional considerations are:
  • any views expressed by the child and factors, such as the child's maturity and understanding, which affect the weight given to those views
  • the nature of the relationship between the child and each parent and other people including grandparents and other relatives
  • the extent to which each parent has taken, or failed to take, the opportunity to participate in exercising parental responsibility (see Parental responsibility), spend time with and communicate with the child
  • the likely effect of any change on the child: including the likely effect of separation from either parent or any child or other person who they have been living with
  • the expense or difficulty of a child spending time with and communicating with a parent
  • each parent's capacity to fulfill a child's needs: the court takes into account the capacity of each parent or of any other person (including a grandparent or other relative) to provide for the needs of the child, including the child's emotional and intellectual needs
  • the maturity, sex, lifestyle and background of the child and either of the child's parents
  • the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture
  • each parent's attitude to the child and to their parental responsibilities: the conduct of a parent can be relevant to a dispute over where a child is to live if that conduct may affect the care, welfare and development of the child - for example, factors such as alcohol or drug addiction, domestic violence, physical or mental illness, previous neglect or child abuse, the payment or non-payment of child support, or unreasonably denying contact with a child, may be considered relevant
  • family violence: the court considers any family violence involving the child or a member of the child's family and any domestic violence order that applies to the child or a member of the child's family
  • whether it would be preferable to make the order that would be least likely to lead to further proceedings in relation to the child
  • any other fact or circumstance thought relevant.

The factors outlined above are considered in terms of the long-term and short-term care, welfare and development of the child.

It should be noted that a child does not give evidence to the court in person, nor will the judge ordinarily see or speak to a child. Rather, a child's wishes are communicated to the court via a family report or through a legal representative appointed on the child's behalf, called an Independent Children's Lawyer (ICL) [FLA s.60CD]. It is important to bear in mind that children often express to both parents a wish to live with them, and that they may do so out of loyalty and a concern to maintain close contact with that parent. Children may or may not express those same views to an independent person, like the ICL or a family report writer, and children cannot be forced to express a view [FLA s.60CE].

Since the 2006 amendments to the Family Law Act came into force, there is a much greater emphasis than ever before on resolving disputes other than by a trial. There is also a clear direction to the court to consider orders which permit both parents to have significant involvement in a child's life.

Parents (and, where relevant, third parties (see Agreements involving third parties)) are required to attend dispute resolution before filing an application about children's matters. To show that they have met this requirement, parents need to provide the court with a certificate from a family dispute resolution practitioner (FDRP) before they are allowed to file their application in court [FLA s.60I].

There are some circumstances, such as where there are allegations of child abuse or family violence or where the matter is urgent, where family dispute resolution will not be appropriate [FLA s.60I]. Parents to whom these exceptions apply will not require a certificate from an FDRP before they make their application to the court. However, the court may make orders that the parents participate in family dispute resolution at any stage during the proceedings, for example, once urgent matters have been dealt with.

The Commonwealth Government provides funding to Family Relationships Centres and other similar organisations to operate family dispute resolution services and counselling in capital cities and other regional centres.

If the court applies the presumption for equal shared parental responsibility (see Parental responsibility), the court must consider making an order that a child spends equal time, or substantial and significant time with each parent if it is reasonably practicable and in the best interests of the child [FLA s.66DAA]. Substantial and significant time is time which includes weekdays, weekends, holidays and special occasions. People who advise parties in relation to children's issues after separation are required to raise the possibility of equal or substantial care with the party or parties they are assisting. Advisers include solicitors, family counsellors and family consultants [FLA s. 63DA].

Orders as to with whom a child is to live

An order about who a child will live with should specify the name and age of the child, and should clearly indicate when (what days and times) a child will live with that parent. Other matters may be included such as the venue for handover and which of the parents will transport the child.

Keeping the children together

The court is often reluctant to separate children, and a parent who can show that they have the capacity to care for all of the children in their family has an advantage over one who is seeking orders in relation to only one or some of the children.

The effect of a parent's lifestyle choices

Each individual case is assessed on its merits, and the fact that a parent is living in a de facto or homosexual relationship, or in some alternative lifestyle, is not necessarily relevant to whether a child should live with or spend time with them. What is relevant is the whole environment and the effect it will have on the child. Factors such as the personality and attitudes of the people involved in the relationship and the strength of the relationship can be considered.

Types of orders a court can make

The court can make a number of different orders when determining an application relating to children. In rare cases, the court may order that a child live in the sole care of one parent and spend no time with the other parent. This might be the case if there are serious issues of abuse or violence. More often, orders will provide that a child live with one parent and spend specified amounts of time with the other parent. There may be orders about handover, medical procedures, education, extracurricular activities, and a range of other matters which affect the welfare of a child. The court may also make orders about how the parties should resolve any conflicts that arise between them in the future.

The court has a wide discretion in the types of orders it may make. The types of orders made will be dictated by what the parties ask for in their applications to the court, and what the particular facts of the case are.

Interim orders

If one parent makes an application for a child to live with them, and that is opposed by the other parent, it may be some time before a final determination is made. In such a case, the court may make an interim order that the child is to live with one parent until a final order can be made. An interim order does not create a status quo which influences the final determination. In fact, the court is specifically directed to disregard the allocation of parental responsibility in interim orders when making a final determination [FLA s.61DB].

Before 2006, interim orders made by the court would generally maintain the status quo if the child was well settled and not at risk. These days, the existing status quo is only one factor to be taken into account. The court is still required to consider all the factors set out section 60CC of the Act, as well as the presumption of equal parental responsibility and whether a child should spend equal or substantial time with the other parent. There may be allegations raised in affidavits - that is, of abuse or violence - which are not able to be tested in an interim hearing. In those cases the court has the discretion to determine that it would be inappropriate to apply the presumption of equal parental responsibility [FLA s.61DA(3)] on an interim basis. See Goode v Goode [2006] FLC 93-286; Fam CA 1346.

Orders in favour of a third party

The court can make an order about where a child lives or spends time in favour of a person who is not a parent, such as a grandparent or a relative of a parent. A live with order made in favour of a third party does not extinguish the responsibilities of the parents (see Parental responsibility ).

Parents do not have to agree to an order in favour of a third party. The court may make such an order if it is satisfied that the order is in the best interests of the child (see What must the court consider)

Urgent orders

Under certain circumstances, a court can make an urgent order in favour of one parent without even hearing from the other parent. Such an order (an ex parte order) is only made in exceptional circumstances. This kind of order only operates for a very short period and the other parent is given every opportunity to be heard by the court throughout the rest of the proceedings.

Varying a parenting order

The court can discharge, vary, suspend or revive a parenting order at any time until the child turns 18 years of age, marries or is adopted by another person. However, the court can only change an order if there is a change in circumstances substantial enough to warrant the change. See Rice & Asplund [1979] FLC 90-275; (1978) 6 Fam LR 570.

Examples of changes that would be considered substantial are:
  • the removal of a child from Australia
  • a parent's remarriage and a subsequent change in the stability of accommodation
  • a change in the psychological and physical needs of a child.

It is possible to vary court orders by parties agreeing to those changes and applying to the court for new consent orders or making a new parenting plan (see Making arrangements without going to court).

Terminating a parenting order

Any parenting order concerning a child automatically ceases once the child turns 18 years of age, marries or is adopted by another person. Where the child is adopted by a step-parent, existing parenting orders are not altered unless the Family Court approves the adoption or the Family Court or Federal Circuit Court varies the orders.

Existing orders may be terminated with the consent of the parties by filing consent orders or making a new parenting plan. The court decides whether or not to approve consent orders and will not make orders which are clearly not in the best interests of a child.

When one party dies

If an order as to where a child lives has been made in favour of one parent and that parent dies, the other parent is not automatically entitled to have the child live with them. The surviving parent or any other person can apply to the court for a parenting order in their favour.

Appointing a guardian by will

In their will, a parent may appoint another person to be the guardian of their child upon their death. The court can consider such an appointment as evidence of the parent's wishes, but the appointment will not, of itself, give the appointed person care of the child in any legal sense. The issue for the court is, at all times, what is in the best interests of the child.

Preparing an application for a parenting order

Each parenting dispute is, to some extent, unique and an application will reflect this. However, a party making an application to the court should include information about:
  • their personal qualities as a parent
  • their background and occupation
  • their mental and physical health
  • the accommodation proposed
  • the child's health
  • the child's physical care
  • the child's moral, cultural and educational influences
  • their emotional involvement with third parties (such as a wife, husband or de facto partner), including a third party's personal traits, background and occupation and relationship with the child
  • their relationship with their family group, including contact with brothers, sisters, parents and grandparents and other extended family
  • their attitude about contact between the child and the non-resident parent
  • any specific cultural issues important to the child's wellbeing and development
  • the orders that the applying parent would like the court to make.

The enforcement of foreign residence orders

Australian courts are required to recognise and act on registered overseas residence orders. The orders that can be registered in Australia are those made in prescribed overseas jurisdictions, which include New Zealand, Papua New Guinea and most states of the USA. A comprehensive list of countries that are prescribed overseas jurisdictions is available at Schedule 1A of the Family Law Regulations.

The procedure for registering overseas residence orders is contained in the Family Law Regulations [reg.23]. To register an overseas order, a person needs to send a certified copy of the order to the Secretary of the Attorney-General's Department, who sends it on to a Registrar at either a Family Court registry or the Supreme Court in the applicant's home State or Territory.

An overseas residence order that has been registered has the same force and effect as an order by an Australian court. A court in Australia cannot cancel the registration of an overseas order unless each responsible person under the order consents to the cancellation, the welfare of the child would be adversely affected if the order continues to operate, or there has been a significant change in the child's circumstances to warrant cancellation of the registration [FLA s.70L(6)].

Common conflicts over parenting arrangements

The court only becomes aware of problems in parenting arrangements if someone brings them to its attention by making an application for court orders. In most instances, the court has always encouraged parents to use dispute resolution to try to resolve any problems and has urged them to be flexible, cooperative and to keep what is best for their children as their highest priority. Parents are required to demonstrate a genuine commitment to resolving disputes, keeping court as their very last option.

Following is a list of common problems, together with the court's likely response.
He/she always turns up late

A child can become upset when the parent with whom they are due to spend time with doesn't turn up, changes arrangements, is very late, or too early. Problems can arise if the other parent is not available when the child is due to be returned, or if the parent returning the child is always late. A court can make orders which clearly specify collection and return times. If a problem with punctuality is becoming chronic, a party may bring proceedings to vary existing orders, or for contravention of orders.
He/she never provides the child with suitable clothing

Sometimes, when a child arrives to spend time with a parent, the child has too much or too little clothing, or clothing that is inappropriate - for example, they arrive in their best clothes or without swimmers when the parent has planned to take them to the pool. This can lead to tension and can upset the child. The court generally expects the parent with whom the child lives to provide a child with enough appropriate clothing for shorter visits with the other parent, and for that parent to return these clothes with the child. If a parent is spending substantial and significant time with a child, it is often practical for each parent to keep their own supply of clothes for the child.
He/she bad mouths me in front of the child

This can cause bad feeling, be upsetting for the child and lead to major conflict between the parents. The court may order the parents not to make derogatory comments about each other in the presence or hearing of the child and to refrain from questioning the child about the other parent's private affairs.
He/she always spoils the child rotten

If a child is overindulged while spending time with a parent, they may build a false impression of life with that parent, which can be destabilising for them. Breaking the routine of younger children in terms of sleeps, meals and toilet training can be confusing for a child and can cause hostility between parents. The court may order the parent with whom the child is spending time to stick, within limits, to a young child's normal routine. A parent who showers a child with presents during visits may find that the child reports that fact to a family report writer, and any view the child forms about the parent may be given less weight because it is heavily influenced by that parent's overindulgence.
Soccer training is on Saturday morning and the child would love to go, but he/she won't change the time they spend with the child

Sometimes a child's recreational activities, such as sport or parties, conflict with the time they are to spend with a parent. Parents may differ over which should take priority. The court may make a decision about priorities and may order a parent to take a child to sporting activities, or alter the order so that the child spends time with the parent at another time.
The child finds his/her visits distressing

This kind of distress may indicate a problem with the time spent with a parent or may have other causes. The court's response will depend on the severity of the distress and the reason for it. There is normally a settling in period in the early stages of parenting orders and, during this time, the court encourages parents to persevere. If, however, the distress is severe and is not diminishing or is caused by ill treatment during periods of time spent with a parent, the court will evaluate the evidence. Conditions may be placed on the time a child spends with the parent, for example it may be supervised, or the court may order it to be stopped.
I want to see my child but he/she refuses to allow me to

In most cases, the court makes orders that a child is to spend time with the parent with whom they do not live unless it finds that the latter parent has good reason to refuse to facilitate this. In such a case, orders may be approved subject to appropriate conditions and limitations. If the court determines that the parent with whom the child lives had no valid reason for refusing to facilitate the child spending time with the other parent, it may order them to pay the legal costs incurred in bringing the matter to court.
He/she gets angry and violent in front of the kid when he/she drops off or collects the child

The court can order the offending party to stop being abusive at changeovers or at any other time in the presence or hearing of the children. Alternatively the court may order that the changeover takes place through a third person, such as a friend, or in a public place, like a shopping centre. CatholicCareNT runs Family Contact Centres in Darwin and Alice Springs that can assist parents by offering supervised changeovers, so that the parents don't need to see or speak to each other. If the angry scenes are ongoing or have escalated to threatened or actual violence, the court may suspend or cancel the orders that the child spend time with the parent.
He/she refuses to return the child

Except in special circumstances, the court will order that the child be returned to the care of the parent with whom they normally live immediately. The court may be critical of a parent who breaches an informal agreement without good reason, even though a court order has not been breached. It is common for a child to be reluctant to leave at the conclusion of visits and the court will usually find that is not a sufficient reason for refusing to return them.
He/she gets drunk in front of the child

The court recognises that some parents like to drink alcohol from time to time. However, when a parent who is responsible for a child gets drunk, that can cause problems because that parent might engage in inappropriate or dangerous behaviours in front of the child, may be unable to properly supervise the child, keep the child safe, or drive the child to the hospital or a doctor if necessary. Where alcohol consumption is an issue for one or both of the parents, the court can make orders that put restraints on the amount of alcohol each parent can consume when the child is in their care or even during the time before the child comes into their care. The court can make similar orders about other dangerous behaviours, such as consuming illicit substances or abusing prescription medication. It can make orders that the child must be properly restrained by a seat belt and/or appropriate car seat, or not exposing the child to other people who are doing dangerous things.
It costs me a small fortune every time I want to see my child

When parents live a distance from each other, the costs of the child travelling to see the other parent, or the other parent travelling to see the child, can be expensive. The court will look at the circumstances surrounding each situation and the respective ability of each party to contribute towards travel costs. The court treats the child's welfare as the paramount consideration. If one parent created the expense for reasons other than those associated with the child's welfare and they can afford the travel costs, they may be ordered to pay them. In other cases, the parent most able to afford the travel costs may be ordered to pay, even if the situation was not of their creation. It is more usual, however, for an order to require that parents share travel costs. If the interests of the child require it, the court may order a parent who has relocated to return the child to their previous address, or require that the parent other than the parent with whom the child lives, spends time with the child in the place where the child lives.

Orders to spend time with/communicate with

In addition to making orders about who the child lives with, the court also makes orders about whom the child spends time with and when that time should occur. The child may spend time with the other parent, or with other people like grandparents and other relatives. It is the right of the child to spend time with their parent, not the right of a parent to spend time with their child. This distinction is important because it reflects the principle underlying any decision a court makes regarding children; that the best interests of the child are paramount.

The aim of parenting orders is to foster a meaningful relationship between a child and each of their parents. Orders can be made that a child maintains a relationship with the parent they do not live with in a variety of ways such as face to face contact, telephone calls, emails and correspondence.

The basic principles governing a parenting dispute

The following principles govern the decisions a court makes in a parenting dispute:
  • the welfare of the children is the most important consideration
  • a child has a right to maintain a meaningful relationship and direct contact with both parents on a regular basis
  • parents should, wherever possible, agree on the parenting of their children and share the responsibilities and obligations of being a parent.

Allegations of abuse

The court will not make an order for a child to spend time with a parent if there is an unacceptable risk of child abuse occurring. If an order has already been made, it may be suspended, or a supervision requirement included in the order, until the court is satisfied that there is no longer an unacceptable risk of abuse and that spending time with the parent is in the best interests of the child.

Many parents have differing ideas about how to handle the job of being a parent, and some cope better with the responsibility than others. Any person who reasonably suspects that a child is or has been a victim of abuse or neglect should immediately contact the Department of Children and Families (see Contact points ) to have their suspicions investigated.

Family changeover: avoiding conflict

Sometimes conflict arises when a contact parent collects and drops off a child. A person who is living in Darwin or Alice Springs and experiences or fears conflict at changeover times and does not wish to meet their ex-partner can make use of the Family Contact Centre, a child-focused Centre run by CatholicCareNT. Non-residential parents whose visits have to be supervised by the Family Court can also make use of the Centre (see Contact points).

Interim orders

When a parent applies for an order that a child or children live with or spend time with that parent, they do not want to wait for a trial before such orders are put in place. The time between an initiating application and a final judgment after a trial can be well over a year, and children and parents need some certainty in their arrangements in the meantime. Parties therefore usually file an application for interim orders, in addition to their application for final orders. In those circumstances, a court will make interim (in-between) orders. Interim orders are made by consent or after an argument on the documents, but usually not requiring the parties to give evidence. Parties may make various applications seeking variations of interim orders throughout the proceedings, as circumstances change or problems surface which require changing existing orders in between then and when final orders are made.

Domestic violence and contact orders

Family violence is an important factor that the court considers when making interim and final orders. This includes violence between parties, violence directed to children and violence children have witnessed. Family violence is defined in s4 of the FLA (Cth).

Protecting children from family violence is crucial to promoting their best interests. The court must also consider protecting parties from family violence as this can impact on their ability to care for children.

If there is a risk of family violence or family violence has occurred, the court will consider what safeguards can be put in place to address this and keep everyone safe. This might include orders for parties to effect changeover in a public place, or at a handover service such as CatholicCareNT.

Domestic Violence Orders (DVO's) are called different things in different jurisdictions. Regardless of where the order has been made or whether children are also included in the order, the court must consider whether there is a current DVO in place or an order made previously and the circumstances surrounding the making of that DVO (for example, is the DVO an interim or final DVO, did the court which issued the DVO make findings of facts about the family violence or did the parties agree to the DVO being made without admissions of liability).

The court does have the power to make parenting orders that are inconsistent with a DVO, but they must clearly explain the order made to the parties, the obligations it imposes on the parties, and the effect of any breach. The court must also send a copy of the order to the parties, the police and child welfare authority in the jurisdiction in which the protected person of the DVO resides: s68P and s68Q of the FLA (Cth).

Making a domestic violence order where there is an existing parenting arrangement

The Magistrates Court hears applications for DVOs. When it is hearing an application for a DVO, the court can vary, discharge or suspend existing arrangements made under a court order or parenting plan whereby a child spends time with a parent against whom the DVO is directed. The court may exercise this power if it believes that the arrangements provided for in the Family Court or Federal Circuit Court orders will conflict with any DVO it intends to make. It is, however, very rarely that the Magistrate's Court would exercise this power, preferring instead to make a DVO which can accommodate already existing parenting arrangements in such a way as to ensure the safety of the complainant.

Applying for a parenting order

The Family Court of Australia and the Federal Circuit Court can hear and make a wide range of parenting orders. The Supreme Court of the NT can also make parenting orders, but only if one parent is ordinarily resident in the NT, as can the Magistrates Court, but only if one parent is ordinarily resident in the NT and all parties agree. If one parent doesn't agree, the case must be transferred to the Family Court or Federal Circuit Court. Prior to transferring a case, the Magistrates Court can make interim orders. Usually a person should go to the Family Court or Federal Circuit Court, as these courts are designed specifically to deal with matters relating to relationship breakdown. Generally, the Magistrates Court is only used if there is no other option available, such as in remote communities.

The appropriate forms can change often and it is best to talk to the staff at the Family Court or Federal Circuit Court Registry, or speak to a family lawyer before making an application for parenting orders. An application for parenting orders where parties do not agree to the same orders (consent orders) must be accompanied by an affidavit (a sworn statement) containing essential factual material (see Legal documents ) and a Notice of Risk identifying allegations of family violence and child abuse and/or neglect. A standard affidavit and Notice of Risk is available from the Family Court and Federal Circuit Court registry.

The relevant forms must be filed in the registry. A filing fee is also payable which can be waived in cases of financial hardship. Further information regarding the filing fee can be obtained from the registry.

Pre-action procedures

Parties are required to undertake a genuine effort to resolve their dispute by participating in some dispute resolution process, and exploring the possibilities for settlement by correspondence. As from 1 July 2007 parties are not permitted to file an application unless they provide a certificate from a dispute resolution practitioner. The court will take into account the extent to which parties have initiated and participated in pre-action procedures, and may make costs orders against a party who has been uncooperative, has delayed proceedings or has not made full disclosure of relevant facts. There are certain circumstances where a court will accept that undertaking pre-action dispute resolution was not appropriate, for example where there are allegations of family violence or child abuse, or the application is urgent.

Serving documents

Once filed, a copy of the application and any other documents filed, together with a document setting out the legal and other effects of the proceedings (provided by Registry staff when the documents are filed), must be served upon the respondent. The procedure for service is similar to the procedure for service of an application for the dissolution of marriage (see Couples who are married ). The differences will be explained by registry staff when the forms are collected, although generally requirements for service are satisfied by posting a copy of all documents to the other party, accompanied with the relevant form for service. If relations are hostile and a party may avoid service and delay matters, it is best to serve an initiating application by hand, and obtain either a signed Acknowledgement of Service or complete an Affidavit of Service. A good option is to pay a process server to serve the documents on your behalf. This way you can be sure that they will correctly complete the Affidavit of Service. If a party is represented by a solicitor, that solicitor should be served with the documents. A party to the proceedings should not serve the documents. A court will not proceed to hear an interim application, unless it is satisfied that all relevant parties have been served and been given the opportunity to attend at court and have their say.

Family consultants and the trial process

Division 12A to the FLA aims to promote cooperative parenting, reduce the negative impact of adversarial litigation on children, and achieve resolution of disputes as quickly as possible and with minimal formality.

New matters will, after filing in the court, be referred to a family consultant, who is likely to be a psychologist or social worker. The family consultant will undertake intake and assessment interviews with the parties. Joint interviews will only be conducted if both parties consent.

The family consultant will then convene a family and child conference which may include individual interviews with the children, and feedback to the parents regarding the wishes of the children. A brief report will be prepared, and that report will be placed on the court file. The report may provide the family consultant's recommendations about resolving the substantive issues in dispute. All sessions with the family consultant are reportable and may become part of the evidence at a hearing.

At an interim court event a judge may consider the report and make directions or even partial decisions as the matter proceeds. The judge has a wide discretion in the types of orders and directions which may be made. For example, a judge may order parties to undertake counselling or direct them to enrol children into counselling, or may direct the family consultant to explore a particular issue and report back to the court. The judge will also decide and give directions as to which issues are important and therefore what evidence may be led. Solicitors for the parties may also make submissions about the recommendations and whether there is any evidence before the court which should also be considered in addition to the report.

In the event that parties remain in dispute, the matter may proceed to trial (final hearing). The family consultant may be requested to prepare a family report and appear at the trial to provide further information about their reasoning and recommendations.

Family reports

Family reports can be ordered by the Family Court or Federal Circuit Court to assist them in making decisions about children [FLA s.62G]. A family report may cover a child's relationship with each parent and any new partner, a description of the current parenting arrangements, and any proposals each of the parties may put forward. A family report prepared for the court must include a section where possible, which sets out a child's view of parenting arrangements and any proposals which may have been made by the parties. The report will also include a section which records any comments the child may wish to convey to the judge.

During the course of a trial, a judge may direct a family consultant to investigate a particular issue and report back to the court either orally or in writing.

The Independent Children's Lawyer

The court of its own accord, or on the application of the child, either parent, an organisation concerned with the welfare of the child, or any other person, may order that a child's interests be independently represented [FLA .s68L], by an Independent Children's Lawyer (ICL).

The role of the (ICL) is to form an independent view, based on the available evidence, of what course of action is in the child's best interests [FLA s.68LA]. An ICL is not obliged to act on the instructions of a child.

The ICL is obliged to put the child's views before the court but is not bound by a child's instructions when it comes to making submissions to the court. The ICL may report directly to the court the child's views on certain matters. The ICL may liaise with the family consultant or any other court-appointed expert and ensure that the relevant information about the child's views and other matters relating to the child's welfare is put before the court by way of expert reports. The ICL is a party to the proceeding and is able to present and test evidence before the court.

Appeals

An appeal against a final parenting order is made to the Family Court by completing a Notice of Appeal and filing it in the registry of the Family Court within 28 days from the date the order being appealed was made. A filing fee is payable.

It is recommended that you obtain independent legal advice from a family lawyer before pursuing an appeal.

Enforcing parenting orders

The court has available to it a range of remedies to enforce a parenting order.

Injunctions

To make a caregiver comply with a parenting order, a caregiver can ask the court to make an injunction (a type of court order). An injunction can prevent a caregiver from doing certain things, such as taking a child out of Australia, or can regulate the behaviour of the party while the child is in their care, such as ordering them not to drink alcohol.

A party who breaches an injunction can be liable for a range of penalties (see below).

Penalties for not complying with orders

If the court finds that a person has, without reasonable excuse, contravened the provisions of a parenting order or plan, it can:
  • vary the primary order
    order a party to attend a post separation parenting program
    compensate for time lost with a child as a result of the contravention
    require a party to enter into a bond
    order a party to pay all or some of the legal costs of the other party or parties
    order a party to pay compensation for reasonable expenses lost as a result of the contravention
    require a party to participate in community service
    order a party to pay a fine
    order a party to a sentence of imprisonment.

Warrants and arrest

A warrant for arrest may be issued where, for example, an application for contravention of an order is filed and served, and the defendant does not turn up at the hearing. The court can also issue a warrant for the arrest of any person it believes, on reasonable grounds, to have breached a court order.

When children are taken/withheld by a parent or other caregiver

When a child is taken or withheld by a parent or person who spends time with a child pursuant to a parenting order, the aggrieved person should take urgent action by obtaining legal advice and filing an application seeking a recovery order. A recovery order, if made by the court, orders the return of the child to the aggrieved person. If a person does not take action quickly they may not be able to get orders made in their favour on an interim basis. If the application is successful the court will order the return of a child to the aggrieved person, with the assistance of the Federal Police if necessary.

Recovery order

The court has the power to make an order requiring the return of a child to either the applicant or some other person. Such an order can authorise a person to stop and search vehicles and enter premises. The court can also issue an order about the day-to-day care of a child in anticipation of that child's return so as to prohibit any future removal of the child, or authorising the arrest of the person who removed the child.
If the aggrieved person knows where the child may be living

If a parent refuses to return a child after a visit or has taken a child, and there are court orders in place, it amounts to a breach of the orders, and the aggrieved parent will need to go to court to seek a remedy. The court decision with respect to punishment is based on the seriousness of the breach, what is in the best interests of the child, whether the order has been breached previously and whether there was a reasonable excuse for breaching the order.
Location Orders and Commonwealth Information Orders

If the aggrieved person doesn't know where the child is located, they should seek a location order which directs a person/ agency such as Centrelink to supply information about a child's whereabouts, in addition to a recovery order. Applications and supporting affidavits need to be lodged with the court. An application for a location order can be made by a person with whom the child lives or spends time with, or is concerned with the care, welfare and development of the child. It is not necessary for there to be any existing parenting orders in place. The order must be served on the agency or person requested to produce information.

Location orders are usually made when a child is removed and the aggrieved person satisfies the court that they have exhausted all other reasonable means of being able to locate the child (for example, asking mutual friends/family about the child's whereabouts). The best interests of the child remain the paramount consideration for the court in deciding whether to make a location order. Any person required to provide information under the order must do so regardless of any other law that might apply. If there are allegations of family violence, a court may direct that the address of the parent or person who has the child not be released to the other party, but only to their solicitor so that documents may be served.

These kind of orders are only appropriate if the child is believed to be in Australia.
If you believe a child will be taken from Australia

If an aggrieved person is worried that a child may be taken from Australia, they can:
  • lodge an objection with the Department of Foreign Affairs and Trade to prevent the other parent taking out a passport in the child's name or including the child's details on their own passport. A passport cannot be issued to an unmarried person under 18 years of age unless the applicant supplies authorities with the written consent of every person entitled to give it under Federal, State or Territory law or, alternatively, a copy of an Australian court order permitting the applicant to leave Australia [Australian Passports Act 2005 (Cth) s.11]
  • apply to the court for a child to be placed on the Family Law Watchlist. Once the application has been filed with the court, the applicant can forward the sealed application to the Australian Federal Police and complete the Family Law Watchlist Request Form providing details of the child and person who has them and place the child on the Watchlist temporarily until the court has an opportunity to consider the matter. Forms may be subject to change and it is prudent to contact the Australian Federal Police and/or check their website to confirm what must be completed in order to place the child on the Watchlist.

International abduction of children

Hague Convention

Children may not be taken overseas without the consent of both parents, or a court order. If a child has been taken overseas without the knowledge or consent of a parent, or retained overseas for a period longer than consent was given, there are steps that can be taken to have the child returned to Australia.

Australia is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction (the Hague Convention). If a child is taken to a country that is also a signatory to the Hague Convention, the child will usually be returned to Australia. Under the treaty, a child must be returned to the home country unless the parent seeking the return has not actually had contact with the child for some time, there is a grave risk that the child would be harmed if returned, the child objects to the return and is an older child, or if the child has been removed from their home country for more than a year and is settled in the new environment [Family Law (Child Abduction Convention) Regulations reg.16]. Hague Convention countries are listed in Schedule 2 of the regulations.

Under the treaty, it is not necessary for the person who lost the child to have had a parenting order at the time of the abduction. It is only necessary that the child usually lives in the country from which they were taken, and that the person who lost the child has a legal right under the law of that country to determine where that child may live. The FLA automatically gives these rights to each parent on the birth of a child without a parenting order.

The Federal Attorney-General provides legal and financial assistance with applications and return of children to Australia.

Non-convention countries

Many countries that are not signatories to the Hague Convention (including some Pacific Island countries, some of Australia's neighbours in Asia, and some African countries) are still reciprocating jurisdictions for the purpose of enforcing court orders [see FLR Sch. 2]. Australian parenting orders may be registered in these countries. The orders should then be enforced and the child ordered to return to Australia. The Federal Attorney-General's Department may provide legal, financial and practical assistance to track down abducted children to these and other countries.

Prevention

As with most things, prevention is far better and easier than retrieving a child from overseas. When overseas abduction is a risk, the child should be put on the Watchlist kept by the Australian Federal Police. Any child on the list will be stopped as they pass through customs before boarding an airplane or ship.

The Family Court will also address urgent applications where there is a real risk a child may be taken overseas and it is not practicable to wait for the registry to open on the next business day. If a child has been abducted after normal court hours, the Family Court has a 24 hour emergency number which can be accessed by contacting the general information number at 1300 352 000. If necessary, a judge or registrar of the Family Court will make a parenting order or arrange for a child to be placed on the Watch List at any time of the night or weekend through the emergency number.

The Australian Passports Office also has a list of children to whom they will not issue a passport (see Contact points ). If the child does not have a passport already, any child at risk should be placed on the Child Alert list in addition to the Watchlist. Only a person with parental responsibility of the child can have the child placed on this list.

If the child already has a passport, then it should be kept locked away if possible. If the child is eligible for a passport from another country, the consulate or embassy of that country should be contacted to determine what procedures that country may have to prevent the overseas abduction of children.

Child support

Child support is money paid by one parent (the 'payer') to the other (the 'payee') for the day-to-day living expenses of their child. All parents are expected to contribute to the financial support of their children, regardless of whether they were in a relationship at the time of the child's conception or after birth. Comprehensive information and forms about child support can be found on the Department of Human Services (Child Support) website.

How separated parents resolve the issue of child support largely depends on whether the parties reach agreement on the basis of their own arrangements (the big issue usually being how much the payer will pay the payee), or whether the DHS 'formula' is used to calculate child support payments.

The DHS will use their formula to calculate the annual rate of child support payable under an administrative assessment unless the assessment is varied by a court order, a child support agreement, or because the DHS has a specific reason to depart from the formula.

Applying for child support

A parent, or non-parent carer who is an eligible carer, can apply to DHS for an administrative assessment of child support for a child if they are not living with the other parent of the child on a genuine domestic basis (if the parents are separated but living under one roof child support may be payable).

A person can make an application:
  • by telephoning DHS on 131 272 to make an application over the telephone
  • electronically, by completing and lodging the forms on the DHS website

The DHS formula

The annual rate of child support payable is calculated through the use of a formula which considers things like:
  • parents' incomes
  • the percentage of time each parent cares for the child
  • the costs of the child.

A child support estimator is available on the DHS website.

If somebody other than a parent is caring for a child then there may be three (or more) parties to a case. Parties can apply to depart from the assessment if they can establish that there are special circumstances which warrant a reconsideration. For example, a payee may believe that the child has special needs, or the payer may say that their capacity to pay child support is affected by their legal duty to maintain another child or person.

Agreements

The child support legislation allows parents to reach agreement on the amount of child support to be paid. A child support agreement has to meet the requirements of the legislation and has to include matters that can be dealt with in a child support agreement. Child support agreements can be limited or binding.

Binding Child Support Agreements

These agreements allow parents to make binding financial agreements about child support, and can provide for a payer to pay less than the DHS formula amount of child support. Each party to a binding child support agreement must have received independent legal advice before entering the agreement and attach a certificate confirming the same to the application.

A child support agreement form must be completed and approved before an agreement takes effect. A binding child support agreement must meet certain criteria, and cannot be varied. However, it can be terminated and replaced with a new binding or limited child support agreement.If parties do not consent to ending a binding child support agreement a parent will need to apply to the court to have this agreement set aside or wait for the agreement to end.

Binding child support agreements can also provide for child support to be paid in the form of a lump sum which can be beneficial (for example a lump sum payment or a transfer of equity may assist a payee to avoid having to sell a family home). However, the amount of any lump sum must equal or exceed the current annual rate of the current child support assessment.This type of lump sum operates as a credit against liability created by an assessment or an agreement. The lump sum does not interact with the liability. At the end of the financial year, an amount will be drawn down from the lump sum equivalent to the liability for the year after which the residual amount will be indexed until such time as it is exhausted.

Limited Child Support Agreements

Limited child support agreements require that the amount represented in the agreement must be at least as much as would otherwise have been payable at the annual rate of child support payable under a child support assessment, so a child support assessment has to have occurred. Parties do not need legal advice before entering into a limited child support agreement.

A limited child support agreement can be terminated by either party in certain situations - for example if circumstances change so significantly that the parties should not be locked into an agreement that does not reflect those new circumstances.

Upon acceptance of a limited agreement, DHS will create a 'notional assessment' which is electronically sent to Centrelink to enable the correct calculation of a person's entitlement to the Family Tax Benefit. Parties to a limited agreement may seek a new 'notional assessment' at any time. If the amount of the 'notional assessment' is at least 15% more or less than the previous 'notional assessment', a child support client can ask DHS to end the agreement. The liability will then be determined by the prevailing child support assessment. Either party can also elect to terminate a limited child support agreement after it has been in place for three years.

Other facts re Child Support Agreements

DHS can provide assistance in providing information and helping to navigate which option is best for you, however they cannot provide legal advice or help draft agreements. They can assist practitioners by providing advice on the construction of an agreement. For example, they can advise whether an agreement complies with relevant legislation and can advise on whether the agreement produces the desired outcome. Practitioners can contact the solicitor's hotline on 1800 004 351 and visit the website.

Note that parties don't have to have a DHS formal based agreement to make direct payments to each other (for example, purchase of clothes), third party payments (for example, payment of sporting fees) or prescribed payments (for example, school fees).

Collecting child support

General

A registrable maintenance liability is one that can be registered in the Child Support Register for collection by DHS. DHS registers a liability for collection by entering details of the liability in the Child Support Register.This typically involves child support arrangements that are based on the DHS formula; however, a person can also register an agreement, or court order with the DHS, which will then collect the money on their behalf. This is usually the best way to ensure regular payments. Only approved agreements can be registered.

Where there is a history of regular payments the DHS encourages parents to opt for private collection. If private collection later breaks down, the carer parent can ask the DHS to again start collecting the child support.

Collecting and enforcing child support

The DHS must pursue recovery of all registered child support debts unless they are uneconomical to pursue or not legally recoverable.

DHS can collect child support as voluntary payments from the payer; or by intercepting money which would otherwise be payable to a payer (for example, via a tax refund, or by instructing an employer to make periodic deductions from the wages of a payer). The involvement of a court is not required.

The DHS can also take payers to court in some circumstances when all other efforts to obtain child support have failed.

In some circumstances, a payee can also take action in the Federal Circuit Court to recover child support payments even if they have asked DHS to collect their child support.

If you don't agree with a DHS decision

If you don't agree with a DHS decision there are a number of possible actions that you can take. You can object to most DHS decisions in writing or by email. If this doesn't give you satisfaction, you can apply to the Social Security Appeals Tribunal, Administrative Appeals Tribunal, or to a court. Where a client seeks departure (via the change of assessment process) in relation to a period that is more than 18 months previous, they must first seek the leave of the court. If the court grants leave, the court may hear that departure application or may remit it to be heard by the DHS.

Parentage

When a parent or a non-parent carer asks DHS to make a child support assessment, DHS needs to be satisfied that all parties claiming to be parents are parents of the child. DHS will only be satisfied that a person is a parent in specific fact situations.

DHS can be satisfied that a person is a parent in eight fact situations:
  • the child was born while the person was married to the child's mother or father
  • the person is named as the child's parent on the child's birth certificate
  • a court has found that the person is a parent of the child
  • the person has executed an instrument such as a statutory declaration acknowledging that they are the child's father or mother (form available on DHS website)
  • the person has adopted the child
  • the male parent was living with the mother between 20 and 44 weeks immediately before the child's birth
  • a statutory declaration, or other relevant instrument has been made by a non-parent carer declaring that a parent or both parents are named on the child's birth certificate
  • the person is a parent under the Family Law Act 1975; for example, the child was born as a result of artificial conception or surrogacy

The DHA cannot be satisfied that a person is a parent of a child solely on the basis of the results of paternity tests, or a person's verbal acknowledgment of parentage. When a woman asserts that a certain man is the father of her child and there is no evidence to support that claim, DHA will refuse that application. What often happens is that the man is invited to have a DNA test. If he refuses to do so, the mother may apply to the Federal Circuit Court, and obtain an order that the man complete a DNA test. If he refuses to take the test, the court may declare that he is the father of the child.

If the man does take a DNA test and is revealed to be the father, the matter will often resolve by the man executing a statutory declaration acknowledging that he is the child's father. This evidence will then support a fresh application for a child support assessment. Otherwise, an application to the court is likely to result in a court order declaring that the man is the father of the child. A liability can result so that the mother can recover money that has not been paid, sometimes before the court application. If a man does take a DNA test and is revealed to be the father, he will usually be expected to pay the costs of the DNA test. If he is not the father, the mother is usually expected to pay the costs of the DNA test. Court orders may be obtained to ensure that the responsible party pays these costs.

A man who does not believe he is the father of a child cannot object to that decision, section 80(4). Instead, he must seek a section 107A declaration in the Federal Circuit Court that the mother was not entitled to the assessment because he is not the parent of the child. When the court makes such a declaration they must then consider repayment by the mother under section 143.

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