A parenting order in relation to a child may be applied for by:
- either or both of the child’s parents;
- the child;
- a grandparent of the child; or
- any other person concerned with the care, welfare or development of the child.
A parenting order only displaces parental responsibility to the extent expressly provided for in the order, or if necessary to give effect to the order.
When making a parenting order, the court must apply a presumption that it is in the best interests of the child for his or her parents to have equal shared parental responsibility for the child. The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
- abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or
- family violence.
The presumption applies to interim orders unless the court considers it is not appropriate. However where an interim parenting order is in place, the court in making a final order must disregard the allocation of parental responsibility in the interim order.
The presumption of equal shared parental responsibility may be rebutted if the court is satisfied that it would not be in the best interests of the child.
If the presumption is not rebutted, there is no presumption that the child will spend an equal amount of time with each parent.
In parenting disputes the major areas of conflict revolve around where the children will live and how much time the children will spend with the other parent.
If a parenting order is to provide that a child's parents are to have equal shared parental responsibility, the court must:
- consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
- consider whether the child spending equal time with each of the parents is reasonably practicable; and
- if it is, consider making an order to provide (or include a provision in the order) for the child to spend equal time with each of the parents.
If a parenting order is to provide that a child's parents are to have equal shares parental responsibility for the child and the court does not order equal time, the court must consider whether the child spending substantial and significant time with each of the parents:
- would be in the best interests of the child; and
- this would be practicable; and if so, consider making such an order for the child to spend substantial and significant time with each of the parents
It would be taken to be substantial and significant time with a parent only if:
- the time the child spends with the parent includes both:
- days that fall on weekends and holidays; and
- days that do not fall on weekends or holidays; and
- the time the child spends with the parent allows the parent to be involved:
- the child's daily routine; and
- occasions and events that are of particular significance to the child; and
- the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
The matters which may be dealt with by parenting orders include:
- 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 (Cth);
- 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;
- any other aspect of the care, welfare or development of the child or parental responsibility of the child.
Please Note: The information contained in this article is general in nature and cannot be regarded as anything more than general comment. Readers of this article should not act on the basis of this comment without consulting one of iLaw’s legal practitioners who will consider their particular circumstances