Upon separation, when parents disagree about who should take care of their child, they can apply to the court for parenting orders. This means the court decides about parenting arrangements for the child. In your application, you must explain to the court what you are seeking, whether that be sole parental responsibility (or ‘custody’), equal shared time, or something else. Things the court will decide on include:
1. Who the child will live with;
2. How much time, and when, the child will spend with the other parent;
3. Who will fund the child’s living expenses;
4. Who will decide where the child goes to school, and
5. Other long-term decisions.
You may be wondering, how does the court decide? It is up to you to put relevant evidence before them. This is done by writing an affidavit – a ‘story’ of your version of events. For example, you may wish to include:
1. How you and the other parent have ‘divided’ the parenting responsibilities in the past;
2. Each parent’s attitude to parenting;
3. Your work schedule, to demonstrate whether you have a steady routine;
4. Any history of family violence; and/or
5. Family support available to you, like grandparents, and the child’s relationship with them.
It is important to remember not to let your emotions get the better of you – the affidavit needs to be based on facts, and not opinionated or emotional. It should support the orders you are seeking. For example, if you are seeking sole parental responsibility of your child, your affidavit must explain why this arrangement is most suitable.
Overall, the court will make their decision based on what is in the best interests of the child. After looking at both parents’ affidavits and taking all the evidence into account, the court will make a decision that will:
- Protect the child from physical or psychological harm, abuse, neglect and violence;
- Facilitate both parents having meaningful involvement in the child’s life; and
- Ensure the child receives proper parenting to reach their full potential.
According to section 60B of the Family Law Act, the law aims to:
… ensure that children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
One of the main things to decide on is the allocation of parental responsibility. The court will presume ‘equal shared’ parental responsibility is suitable, unless evidence indicates the contrary. For example, allegations of child abuse by one parent are sufficient to convince the court otherwise. Where one parent is given sole parental responsibility, they are entitled to make all the decisions about the child’s upbringing, including their name, religion and school. Otherwise, with equal shared, both parents must come to agreement.
The court also orders who the child will live with, and when they will see the other parent. The court can also specify where changeover is to occur – that is, when one parent will handover the child to the other. This is typically in a public place, like the child’s school, a playground or shopping centre.
The court will then put their decision into orders – these are legally enforceable, which means that if one parent does not follow them, they can be penalised. The orders remain in force until a new order is made, changing them or by agreement between the parties.
It is important to remember, that before a court can make parenting orders, both parents must attend Family Dispute Resolution to make a genuine effort to resolve the issues. If you are unable to, you will then be issued with a Family Dispute Resolution certificate, and will be permitted to proceed to the court for assistance.
If you need advice on parenting orders, please contact our office on (07) 5619 5933.
Written by Sarah Penfold.