In Family Law, a parenting order is a legal agreement about how separated parents divide the responsibility to take care of their children. These agreements are sensitive. As such they are important to respect – but can be violated by either parent who isn’t careful about observing them.
We’ll take you through first what a parenting order is, and what the requirements are. Then we’ll advise you on your options if one party has breached the parenting order.
What is a parenting order?
In circumstances where parents cannot agree on arrangements for the care of children, and they have not been able to resolve the issues during a family dispute resolution process, then either party can apply for a parenting order from the Family Court.
A parenting order by the court will determine appropriate arrangements for children in the circumstances of each case. The order may deal any of the following matters:
● who the children will live with;
● how much time the children will spend with each parent and with others such as grandparents;
● the allocation of parental responsibility as between the parents;
● how the children will communicate with the parent they do not live with, or other people if relevant; or
● any other matter dealing with the care, welfare or development of the child such as schooling or medical treatment.
The legal presumption is that the parenting order will provide that both parents have equal shared parental responsibility, in which case, any decision about a major long-term issue in relation to a child must be made jointly. This requires each person to consult with the other and make a genuine effort to reach a joint decision. The court will presume that this will be the case unless a party is able to rebut that presumption.
It can also set out a protocol for resolving disputes between the parties arising from their parenting responsibilities, including matters dealt with in the court order. If parental responsibility is shared, a parenting order can even include how the parties will communicate with each other if this can facilitate a better outcome for the children.
What does the court consider in making a parenting order?
When making a parenting order, the main consideration of the Family Court is whether the proposed arrangements are in the best interests of the children.
The court will consider many different factors, including protecting children from physical or psychological harm arising from abuse, neglect or family violence while maintaining their relationships with important people in their lives.
Legal obligations arising from a parenting order
A parenting order remains in force until a new parenting order is made or unless the parties mutually agree in writing to a new parenting order which has the effect of changing it in some way. This is the case even if any of the parties circumstances change over time. However such changes in circumstances may be grounds to apply to vary the order.
The parties to a parenting order are obligated to take all reasonable steps to ensure compliance with the order and must also encourage their children to comply. For example, if the order states that a child should spend time with another party, the first party must not only ensure that the children are available but must also positively encourage them to comply.
If a parenting order provides for a child to spend time with, live with, communicate with a person, or a person is to have parental responsibility for a child, then it is an offence to allow the child to leave the country without an order of the court or without the consent of the person who the child should spend time with to comply with the order; particularly if to do so would have the effect of preventing the party from spending time with the child pursuant to the order or if the order specifically prohibits a child being taken out of the country.
Penalties for failing to comply with a parenting order
If a person files an application in court alleging the other party breached the order, the court may penalise that person who failed to comply without reasonable excuse. Depending on the situation and the type and seriousness of the contravention, a court may:
● vary the primary order;
● order a party to attend a parenting programme;
● compensate for time lost with a child as a result of the contravention;
● require a party to enter into a bond to secure future compliance;
● order a party to pay compensation for reasonable expenses lost as a result of the contravention, including legal costs;
● require a party to participate in community service;
● impose a fine; or
● sentence a party to a term of imprisonment of up to three years.
The court may also allow a party to apply for a further parenting order.
Location and recovery orders
If a party breaches a parenting order and cannot be located, the court may make a location order. This order requires other people or organisations, including government departments, to give any information they have about where a party and the child may be located.
If a party breach a parenting order by failing to return the child as required, the court may also make a recovery order. This is an order issued to the Australian Federal Police and all state and territory police forces to find and recover the child. The order may also permit the search of any vehicle, vessel, aircraft or any premises where the child may be found.
However if an order contains specific provisions dealing with the child’s living arrangements and a party is in breach of that provision, the other party can rely on the order as grounds for engaging the police to recover child in any event.
If one party wants to change a parenting order and the other party does not agree, family dispute resolution – whether as part of the court mediation process or otherwise – may assist in helping the parties try to resolve a disagreement. Resolving issues this way is less formal than going to court and maybe quicker, less expensive and less emotive than court proceedings. If an agreement cannot be reached via alternative dispute resolution methods, a party may still apply to the court for specific orders. Family dispute resolution is a prerequisite prior to commencing proceedings in the Family Court in any event unless an exemption is sought where there is urgency or on the following grounds:
– There has been child abuse or would be a risk of child abuse
– There has been family violence; or is a risk of family violence.
Seek legal advice
When it comes to parental orders, you should get legal advice before deciding what to do. A lawyer can help you understand your legal rights and responsibilities, and explain how the law applies to your case. A lawyer can also help you to try to reach an agreement with the other party without going to Court.
(Disclaimer: The material in this article is of a general nature and intended for information only. It is not intended to be comprehensive and does not constitute legal advice. Any person with a specific legal issue should consult a lawyer.)