Parenting Orders Australia: How does the Family Law Act apply to Children?

KEY TAKE-OUTS

• The Federal Circuit and Family Court of Australia (FCFCOA) considers the best interests of the children as paramount consideration when considering the appropriateness of parenting orders.
• The FCFCOA considers two primary considerations – being the benefit to the children to having a meaningful relationship with both parents and the need to protect the child from Family Violence, neglect, and harm.
• The FCFCOA also considers a number of additional considerations relevant to the case. Additional considerations could include the age of the children and the wishes of the children.

Parenting Orders Australia: What does the FCFCOA consider?

When making a parenting order, the Federal Circuit and Family Court of Australia (FCFCOA) considers the best interests of the children as paramount. In assessing the best interests’ principles, the Court considers primary considerations:

1. the benefit of a meaningful relationship with both parents; and
2. the need to protect the children from physical or psychological harm, abuse, neglect, or family violence. This consideration is more significant than the first.

The Court also has the discretion to consider additional matters that would be relevant to each individual case. Additional considerations for parenting orders in Australia could include:

1. Views expressed by the children (considering age, maturity, understanding).
2. The relationship the children have with both parents.
3. The effect on the children of any changes in their usual routine.
4. If illicit substance use or heavy drinking is a factor.
5. The ability of the parents to ensure the children are transported to extra-curricular activities, appointments and maintain their friendships.
6. The parents’ capacity to care for the children and taking into consideration their working hours and the practicality of them being able to care for the children.
7. The parents’ capacity to provide for the children’s emotional and intellectual needs
8. Family violence.

We note that this is not an exhaustive list of additional matters the Court can take into consideration in granting parenting orders in Australia.

Parental Responsibility Family Law Act

Parents are presumed to have joint parental responsibility, in the absence of an order stating otherwise. Parental responsibility means you should consult with each other about major issues which may affect the children’s care, welfare, and development, including health, education, religion and living arrangements.

When making parenting orders in Australia, the Court applies a presumption that it is in the children’s best interests for the parents to have equal shared parental responsibility (“ESPR”), except if there are reasonable grounds to believe that a parent or person living with the parent, has engaged in child abuse or family violence.

If orders are made for ESPR, you will need to jointly make decisions as explained above.

If there have been instances of family violence or a parent has engaged in child abuse, the other parent may be able to seek an order for sole parental responsibility. The parent seeking a sole parental responsibility order will need to have satisfactory evidence to support their view that it is in the best interests of the children for a sole parental responsibility order to be made. If a sole parental responsibility order is made, it means that the parent that has been granted sole parental responsibility, can make sole decisions which may affect the children’s care, welfare and development.

What is Equal Time in Family Law?

The Court also has the discretion to determine whether an order for the parents to spend equal time with the children would be in the children’s best interests or whether an order seeking that the children live primarily with one parent and spend substantial and significant time with the non-resident parent, would be in the best interest of the children.

If a parenting order in Australia provides for ESPR, the Court must consider whether it is in the children’s best interests and reasonably practicable to spend equal time or substantial and significant time.

Substantial and significant time includes days that fall on weekends and holidays and time that allows both parents to be involved in the children’s day-to-day routine and significant occasions.

In determining whether it is reasonably practicable for the Court to make an order for equal time or substantial and significant time, the Court considers the distance between the parent’s home, the parent’s capacity to implement such arrangement, the parents capacity to communicate with each other, the impact of the orders on the children, and any other matters the Court may consider relevant.

Prior to commencing parenting proceedings, you need to attempt mediation. If mediation is unsuccessful, you will receive a Section 60I certificate which allows you to initiate proceedings. If the matter is urgent, you may be able to initiate proceedings prior to mediation and seek an exemption from the Court from engaging in mediation.

ABOUT LUISA GAETANI:

Luisa is a Partner at Coutts Lawyers & Conveyancers and head of our Family and Criminal Law divisions. Since being admitted in 2014, Luisa has practiced solely in the areas of criminal and family law. It is her sensitive yet pragmatic approach that has allowed her to develop a strong rapport and build trusting relationships with her clients. Should a client’s matter proceed to court, Luisa has the skillset and experience to assist her clients through this process and where required, will draw upon her network of barristers to further benefit her client’s outcomes.