Frequently Asked Questions

Topics Covered:

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• Divorce & Separation

• Parenting & Children

• Property & Financial Issues

• Family Law Act 1975 (Cth)

 

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Q. What Is Parental Responsibility?

 

The authority to make decisions concerning and affecting a child's care, welfare, and development is known as parental responsibility. Each parent of the under-18 child has parental responsibility individually and jointly unless a court has decided otherwise. The parental responsibility of each parent continues even after the parents' separation or remarrying.

 

If a court has made orders allocating the parental responsibility between parents, the major and long-term decisions regarding the care, welfare, and development of a child must still be made jointly by the parents unless the court has ordered otherwise. Parents must make a genuine effort to make major and long-term decisions jointly after consulting each other. Major and long-term decisions may include decisions regarding a child's education, religious and cultural upbringing, child's name, health, living arrangement, etc. There is no need to consult on issues that are not major long-term issues.

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(See sections 61B, 61C and 61D, 65DAC, 65DAE of the Family Law Act and the case of Goode & Goode [2006] FamCA 1346)

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Q. Who Can Apply For A Parenting Order?

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Any person concerned about a child's care, welfare, and development can apply for a Parenting Order (see sections 64B, 64C, 64D, 65C of the Family Law Act). For instance, a grandparent, an uncle, an aunt, or other relatives can apply for a Parenting Order.

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Q. Do I Need To Go To Court For Parenting Orders?

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You do not necessarily need to go to court to get Parenting Orders to make arrangements for your child's care, welfare, and development. You can simply agree with your spouse/partner on such arrangements (known as "Parenting Plans"). Your agreement with your partner may be verbal or in writing. However, if you both cannot agree on a parenting agreement (i.e., arrangements for your child), then your only option might be to get Parenting Orders from a Family Court. (See sections 65D, 61DA, and 65DB of the Family Law Act).

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Q. What Is A Parenting Plan?

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A Parenting Plan is a written agreement between the parents regarding the arrangements for their child's care, welfare, and development. It can deal with, for example, whom the child will live with, how much time the child will spend with each parent, which parent will be responsible for what, and so on. It must be signed by the parties and dated. It is by far the most cost-effective method for parents to resolve their issues regarding their child without going to court. However, a Parenting Plan is not an enforceable agreement like Parenting Orders by a Family Court. Further, a parenting plan may be varied or revoked by a further agreement between the parties. To make your parenting plan enforceable, you can present it to the court and request that the court turn them into "consent orders" (see below).

 

There is no formal format that the agreement must follow, nor is there a requirement that a lawyer must draft it. (See sections 63C of the Family Law Act) 

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Q. When A Parenting Order Cease to Have Effect?

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A court will not make parenting orders concerning a child who is either 18 years old, or married to someone, or in a de facto relationship. Similarly, A parenting order in relation to a child stops being in force if the child turns 18, marries, or enters into a de facto relationship. (See section 65H of the Family Law Act)

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Q. What Are Consent Orders In Family Law?

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When both parties agree on a parenting plan, or financial & property arrangements but want to formalise their agreement to make it legally binding and enforceable, they can apply to the court for 'consent orders'. They present their agreed/proposed plan or orders to the court for approval. Once the court approves consent orders, they have the same effect and force as if the court itself made them. Consent orders can also be used to vary or discharge existing family law orders.

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Obtaining Consent Orders is a cheaper option than going to court to contest a matter. Further, they give more control and flexibility to the parties to decide what is best for them and their children. Otherwise, a court may make orders as it sees fit and appropriate (which the parents may or may not like).

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Q. How do Courts Deal With Children's Matters Under Family Law?

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In deciding matters involving children, the courts consider the “best interest of the children” as paramount consideration. The courts try to take an approach that promotes a meaningful relationship between the child and both parents while protecting the child from harm (for example, harm resulting from neglect, abuse, family violence, etc.). A court may consider various other factors in deciding children's matters.

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Parents' desires and wishes are not determinative factors in children's matters. Again, the 'best interest of the child' remains a paramount consideration for the court. (see sections 60CA, 60CC, and 60B of the Family Law Act).

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Q. Can I Ask the Family Court To Reconsider, Change or Alter Its Final Parenting Orders?

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Generally, Family Courts do not reconsider their final parenting orders. A court will only reconsider a final parenting order if there has been a significant change in circumstances since the order was made and it is in the child's best interests. The court may review the reasons for the original order, any new relevant information, the likelihood of making significant changes to the order, and any potential benefits or detriments to the child. However, if all parties agree, the court can reconsider the order without these conditions. (See section 65DAAA of the Family Law Act)

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