Family Law: Basic Questions Relating to Parenting Orders
Parenting orders are enforceable arrangements that deal with the welfare of a child. Orders can be made by the courts, however, the desirable outcome is for the parties to reach an agreement without the intervention of the legal system. If the separating parties are unable to resolve their issues, the courts will intervene.
Who can apply for a parenting order?
An application for a parenting order can be made by a parent, child, grandparent, or anyone else who has a concern with the welfare, care and development of the child under s 65C of the Family Law Act (FLA).
What type of parenting orders can be made?
Parenting orders deal with issues such as where the child will live, communication between the parties and the child, how the parents are responsible for the welfare of the child, and any other issue relating to their care and development.
What the courts must consider when making a parenting order?
Under s 60CC of the FLA, when making a parenting order, the courts must determine what is in the child’s best interest. The primary consideration is how an order will benefit all parties, particularly the child and the parents, while protecting the child from any psychological and physical harm.
Beyond the primary considerations, there are additional elements that are considered when assessing what is in the best interest of the child:
- the view of the child
- the child’s relationship with parents, grandparents and any other relative
- the ability of the parent to encourage and facilitate a close and continuing relationship with the other parent
- the effect of the change of circumstances on the child, such as the separating from one parent, another child, and any other relatives
- the practical difficulties that may interfere with the child’s ability to maintain a close relationship with the other parent, grandparent or any other relative
- the maturity, sex, culture and lifestyle of the child or parents that the court may deem relevant
- the child’s right to enjoy their Aboriginal or Torres Strait Islander heritage
- the attitude of either party to their responsibilities of being a parent
- family violence and any family violence orders; if the order is final, or the order is still being contested
- an order that is least likely to lead to further proceedings in relation to the child
- any other relevant issue that the court thinks is important.
What about the views of the child?
The FLA prohibits any child under the age of 18 from giving evidence in court unless there are extraordinary circumstances in which case, a judge will grant leave for a child over the age of 10 to give testimony.
In assessing a child’s view, the court will take into account the age and maturity of the child, as well as the surrounding facts of the case. Under s 60CE of the FLA, it is prohibited to require a child to choose between the parents, and any other matter relating to the issue at hand.