Parenting orders are legally binding arrangements made by a judge which cover the following:
- Parental responsibility and decision-making.
- The parent who the children will live and the amount of time the other parent will spend with the children.
- How time is to be spent with the children such as where and under what circumstances.
The judge makes the decision following a hearing of evidence. The court bases its decision on what is in the best interest of the child.
Where family law proceedings are commenced, there will normally be two separate hearings (an interim hearing and a final hearing) as well as other procedural court appearances.
Parents, grandparents and those concerned with the welfare of a child can apply for a parenting order. In order to commence parenting proceedings, in normal circumstances, a certificate is required stating that you have attended a child dispute resolution mediation.
Interim hearing determine the orders parents will be subject to prior to a final hearing and usually concern how much time a parent will spend with a child.
An interim child custody hearing takes place a number of months following the filing of an application for parenting orders with the court. The time it takes for an interim hearing is often dependent on the workload of a particular courts and whether there is a basis for an urgent application. For example, one parent is withholding the child from the other.
Interim hearings involve the judicial officer reading any affidavits then hearing submissions from each party before making a decision. Parties are usually not cross-examined. The interim hearing is designed to put an arrangement in place that will protect the children from harm and maintain the current status of their relationships with the parents until the final hearing.
It can take more than a year for a final hearing to take place.
At a final hearing all the witnesses who have sworn affidavits will usually be required to attend court to be cross examined and other evidence will be tendered to the judge including often a report from a court-appointed counsellor, psychologist or psychiatrist who has interviewed the parties and observed the children. After considering the evidence and submissions of the parties, the judge decided on who the children live with and how they spend time with the other party as well as other arrangements. The orders remain in place until a child reaches 18 years of age.
What will a judge consider?
The court bases its decision on what is in the best interest of the child. The primary considerations are:
- To facilitate a meaningful relationship between the children and both of their parents;
- To protect the children from harm.
The court is to have regard to the following additional factors:
- The nature of the relationship of the child with each parent and other persons including relatives.
- The extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child, spend time with the child and communicate with the child.
- The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child.
- The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents or any other child, or other person (including any grandparent or other relative of the child) with whom he or she has been living.
- The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
- The capacity of each of the child’s parents and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs.
- The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant.
- 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 (including the right to enjoy that culture with other people who share that culture) and the likely impact any proposed parenting order under this Part will have on that right.
- 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 matter the court thinks is relevant.