If you are unable to reach an agreement on parenting either by yourselves or through meditation, you can ask the Court to make Orders for you. The Court can make a Parenting Order, which is a legally enforceable Order setting out how the children are to be parented in terms of care and time spent with each parent. Prior to any hearing being listed the Court will require that you and the other parent attend Family/Dispute Resolution and obtain a certificate. However, you do not need to attend Mediation if there is any threat to your safety. If your partner refuses to attend or join in mediation, you can approach the Court directly in order to ask that orders may be made.
Whilst you are waiting for the Court to make Parenting Orders we can ask the Court for Interim Orders to be made, which will cover care arrangements whilst waiting for a Final Hearing. The types of Orders commonly sought are orders as to who the children are to live with, and arrangements for time spent with the other parent. These Orders can also cover communication with the other parent via telephone, skype, and email. They can cover the conduct of a parent whilst in the presence of the children, the location in which the children will live, time spent with extended family such as grandparents, overseas holidays and any other factor that the Court considers to be in the interest of the children.
Section 61DA of the Family Law Act, provides for a presumption of shared parental responsibility, this does not mean equal time, rather it means you are both responsible for making long term major decisions for the child, such as schools, medical treatment etc).
However, Section 61DA(2) of the Family Law Act, provides that the presumption of shared parental responsibility does not apply if there are reasonable grounds to believe that a parent of the child has engaged in abuse of the child or family violence. Family violence is defined under the Act as “violent, threatening or other behaviour by a person that coerces or controls a member of the persons family or causes the family member to be fearful. Examples of behaviour that may constitute family violence are assault, sexual assault, stalking, repeated derogatory taunts, intentionally causing damage or destroying property, unreasonably denying financial support needed to meet the reasonable living expenses, preventing a family member from making or keeping connections with his or her family, friends, or culture. A child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects. examples include overhearing threats of death or personal injury, seeing or hearing an assault, comforting or providing assistance to a person just assaulted”.
When making any Parenting Order, the Family Act 1975 requires the Court to hold the interests of the Child as paramount, and when considering what Orders to make the Court must refer to Section 60B of the Family Law Act, which provides how the best interests of the children are met.
Section 60CC of the Family Law Act, sets out how the court can determine what it is the best interests of the child. This section 60CC is broken down into two parts Primary Considerations and Additional Considerations.
The Primary Considerations are:
- the benefit to 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 from being subjected to, or exposed to, abuse, neglect or family violence.
The Additional Considerations are
- any views expressed by the child, in light of the age and maturity of the child;
- the nature of the relationship between the child and parent or grandparents;
- the extent to which each of the child’s parents has communicated with and made decisions for the child;
- the extent to which each of the child’s parents has fulfilled their obligations to maintain the child;
- the likely effect of any changes in the child’s circumstances;
- the practical difficulty and expense of a child spending time with and communicating with a parent;
- the capacity of each parent to provide for the needs of the child, including emotional and intellectual needs;
- the maturity, sex, lifestyle and background of the child and of either of the child’s parents;
- if the child is an Aboriginal child or a Torres Strait Islander child, the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture;
- the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
- any family violence involving the child or a member of the child’s family;
- any other fact or circumstance that the court thinks is relevant.
When making a Parenting Order the Court may stipulate
- the person/s with whom a child is to live;
- the time a child is to spend with another person or other persons;
- the allocation of parental responsibility for a child;
- the form of consultation about decisions about a child;
- the communication a child is to have with another person or other persons;
- maintenance of a child not covered by the Child Support (Assessment) Act 1989
- the steps to be taken prior to an application for variation of an order;
- the process for resolving disputes about the terms or operation of the order; and
- Any other aspect of the care, welfare or development of the child or parental responsibility for the child.