One of the most important considerations for separating parents is ensuring that the care arrangements optimises the welfare and stability of their children and their relationship with both parents continues. For all of the family the separation is a stressful and emotionally charged period. It is important for parents to have appropriate mechanisms in place so that the children’s needs are prioritised.
In this article, we take a look at when a parenting order might be used as that mechanism. We explain the nature of a parenting order, and when they might be useful in families.
What is a parenting order?
Some separating parents part ways amicably reaching agreement about the care of children in an informal way, without ever needing to document or formalise those arrangements. In other cases parents will agree to a Parenting Plan, which is a written document setting out parents’ agreements for their children’s arrangements. Unlike Parenting orders, Parenting Plans are not enforceable.
However, these options don’t work for all families. In some cases Parenting Orders are required because it is necessary to have certain and enforceable arrangements in place.
Parenting orders are Court orders made by a Family Law Court. Parenting Orders can cover a myriad of issues including detailing:
- Information about how parents will exercise their parental responsibilities and how they make long term decisions (about things like schooling, religion, medical decisions) about their children.
- Where the children live, and how much time they spend with each parent.
- How the children will spend special occasions with each parent and when they will move between households.
- How and when parents will communicate with their children when the children are not in his or her care, and how parents communicate with each other in relation to the children.
- The communication parents have with other parties, including the children’s schools and medical practitioners.
- How children divide their school holiday time with their parents, including issues like obtaining passports and where they may travel.
- Management of risk issues, such as the behaviours parents can and cannot display around their children and the other parent including any risk issues such as discipline, alcohol and drug use, and safety issues).
When are parenting orders best used?
Often parenting orders set out the specific default arrangements used when parents are unable to reach agreement. They are utilised when co-parenting relationships are difficult, or where a greater level of certainty is required. Properly drafted they are a useful, enforceable tool to minimise the risk of future disputes. Take for example children’s birthdays, Christmas time or Mother’s and Father’s Day. In the event parents cannot agree about what would occur on those days, the parenting orders will provide clear and certain details about what is to happen and when.
Orders are also advisable when families are required to manage risks which might befall their children – for example, an order might state that a parent must not drink any alcohol when their children are staying with them giving the concerned parent assurance and security that the child or children will be safe in the care of the other parent.
How do you get a parenting order?
There are two different ways to get a parenting order and in each case it is wise to obtain prior advice from a specialist family lawyer.
Parents can enter into Parenting Orders by consent if they each agree to obtaining orders. In this process, no one appears before a Court or speaks to a Judge, and the application for parenting orders is a paper-based application. We refer to these types of orders as consent orders. This is not to say that the Court ‘rubber stamps’ the proposed orders. No Parenting Orders will be made by a Court unless the Court determines that the Orders are in the best interests of the children, having regard to specific criteria set out in the Family Law Act (1975).
When parents cannot agree, Parenting Orders will be made by a Judge in circumstances where the parents have Court proceedings. A Judge-made Parenting Order will only be made after the Judge has heard evidence from both parents and any relevant witnesses, including any expert witnesses such as a psychologist or psychiatrist.
In both cases, parenting orders are enforceable, creating legal obligations for each parent to comply with. There can be serious consequences for parents who fail to comply with his or her obligations, involving Court action, penalties and in extreme cases, the Court deciding that the children should have little or no time with the non complying parent.
How to enforce or change a parenting order
Final parenting orders generally remain in place until a child turns 18. However, parents can agree to change their children’s arrangements (for example, a lot of parents recognise that the orders they had in place for their children before they attended primary school are no longer best for high-school aged children) either with new orders, a parenting plan or by agreement between them.
While parents can agree to change orders at any time themselves, Final Parenting Orders are harder to change if there is no agreement. If a parent applies to the Court for a change in previous parenting orders, the Court has to first be satisfied that there has been a significant change of circumstances before considering whether the original orders should be changed. A significant change of circumstances could be, for example, if something happened in a child’s life that makes the existing order difficult to comply with or is no longer in the child’s best interests for some new reason. In those types of cases, the Court may make new orders changing the old orders and the old arrangements. This is a complex and difficult area of law, and it is always best to obtain specialist legal advice in relation to changing parenting orders before making these types of Court applications.
DDCS Lawyers specialise in all aspects of family law and can assist you with the development of a parenting plan or parenting orders. If you need assistance, contact our team on (02) 6212 7600 to book a consultation.