Children and Parenting Orders FAQs

June 15, 2016 – at 4:25 am – by Bodekers Family Lawyers

Parenting Order FAQs

What are parenting orders?

Parenting orders are a set of directions made by the Family Court about parental responsibilities.

Parenting orders should cover issues such as parental responsibility, living arrangements, time spent and communication and any other aspect of the care, welfare or development of a child. This may include religion, education, medical, travel and other issues as appropriate.

What is shared parental responsibility?

When making a parenting order, unless there are reasonable grounds to believe a parent has engaged in family violence or abuse of the child (or another child who is a member of the parent’s family), the Family Court must apply the presumption that it is in the best interests of the child for his or her parents to have equal shared parental responsibility.

Can I rebut the presumption of shared parental responsibility?

Yes. The presumption may be rebutted when the Family Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.

The Family Law Act 1975 states that the presumption does not apply if there are reasonable grounds to believe that a parent of the child has engaged in:

  1. Abuse of the child or another child who was a member of the parent’s family.
  2. Family violence.

What needs to be considered when making parenting orders?

When considering parenting arrangements, it is essential to think about the “best interests” of children.

Australian family law considers the best interests of children are met when:

  1. Children are protected from physical violence, harm, abuse, neglect or violence;
  2. Children have the benefit of having a meaningful relationship with both parents;
  3. Children receive adequate and proper parenting;
  4. Parents fulfil their duties and meet their parental responsibilities.

What does the Family Court consider when deciding what is the child’s best interests?

The Family Court also has “primary” and “additional” considerations, which consider things such as:

  1. The benefit of the child having a meaningful relationship with both parents;
  2. The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;
  3. Any views expressed by the child that the court thinks relevant;
  4. The nature of the relationship of the child with each of their parents or other persons;
  5. The extent to which each of the parents has fulfilled their obligations to maintain the child;
  6. The extent to which each of the parents has taken the opportunity to participate in decision making about long term issues in relation to the child, in addition to opportunities to communicate and spend time with the child;
  7. The capacity of each parent to provide for the needs of the child;
  8. Any family violence involving the child or a member of the child’s family;
  9. Any family violence order;
  10. Any other fact or circumstance that the Court thinks is relevant.

Can a parent’s wishes overrule a child’s best interests?

No. The High Court noted in Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218, that the reason a parent can give consent is that they are presumed to be acting in the best interests of the child.

This may mean that while a parent’s wishes regarding their child’s best interests could be a consideration, their power to enforce them might be limited by what is objectively in the child’s best interests.

Does a parenting order automatically alter my parental responsibility?

No. As a general rule under the Family Law Act 1975, a parenting order does not take away any aspect of the parental responsibility in relation to the child unless:

  1. Expressly provided for in the order; or
  2. Necessary to give effect to the order.

What are a father's rights to his child?

Children have rights to spend time with mothers and fathers in family law in Perth, Western Australia.

In certain cases, the child’s right to be protected from risk factors such as violence, neglect or abuse is given more weight than the child’s right to have a relationship with a mother or father. 

Do grandparents have any rights in respect of their grandchildren?

Yes. Grandparents do have some rights in respect of their grandchildren, and the court may take them into account when determining the child’s best interests.

The Family Law Act 1975 specifically mentions a child’s relationship with their grandparents as a consideration when making orders.

Can I get custody of my child?

The term “custody” is commonly used when considering what parenting arrangements should be made for your children. However, the term “custody” is no longer used in Australian family law the term “custody” is not used. Instead, Australian family law focuses on what is known as the “best interests of the child”.

What age can a child decide which parent to live with in Western Australia ?

In family law in Perth, Western Australia the child’s wishes as to whom they want to live or spend time with usually increases as they get older.

There is no set age when the wishes of a child will be used to decide which parent to live with in Western Australia.

From about the age of eleven a child can start to have a say to decide which parent they want to live with.

Do I need to attend Family Dispute Resolution (FDR)?

Anyone seeking parenting orders from the Family Court must attempt to resolve their dispute before the Family Court will accept their application.

This process is called compulsory Family Dispute Resolution (FDR). There are also certain situations where an application can be brought without attending FDR.

What if an agreement can't be reached at FDR?

If you are unable to reach an agreement through FDR you can obtain a certificate. You may then file an application with the Family Court.

Can children give evidence in court?

In family law matters in Perth, the answer may be “no”.

Under the Family Law Act (Cth) 1975, generally a child cannot be called as a witness in proceedings in the Family Court. Nor can they be present during proceedings, unless the court specifically orders otherwise.

There are situations when views expressed by children as to their preferred living situation may be heard as evidence, even if made to a third party. For example, the case of Reynolds v Reynolds (1973) 47 ALJR 499 was heard in the High Court where a child’s oral evidence had been incorrectly rejected.

Children and Family Violence

Will family violence affect parenting orders?

Yes. Under s60CG of the Family Law Act 1975, the court should consider the extent to which orders are consistent with family violence.

In the recent case of Jackson v Macek [2015] FamCAFC 114, orders were appealed. Consideration needed to be given to a Family Violence Order against the father and/or the father’s pleading guilty to assaulting the mother.

What should you I do if I think my partner is abusing my child?

If you think your child may be at risk of abuse, you should contact an experienced family lawyer as soon as possible.

After consultation with your solicitor, a notice of child abuse or family violence may be filed, which will bring the matter directly to the court’s attention, giving them the opportunity to consider the matter and issue any orders that may be required.

Parenting Plans

What is a parenting plan?

The Family Law Act 1975 provides that a parenting plan is an agreement that:

  1. Is in writing; and
  2. Was made between the parents of a child; and
  3. Is dated and signed by the parents of a child; and
  4. Deals with at least one of the specified matters.

When is a parenting plan used?

A parenting plan is used in relation to the division of care and responsibility of a child.

The specified matters that parenting plans deal with include, but are not limited to:

  1. The person/persons with whom a child is to live;
  2. The time a child is to spend with another person/persons;
  3. The allocation of parental responsibility for a child; and
  4. The financial maintenance of a child.

Can a parent always decide if their child receives medical treatment?

No. In the case of Minister for Health vs AS (2004) 29 WAR 517, Justice Pullin said:

“The question is not whether to respect the parent’s wishes. The role of the court is to exercise an independent and objective judgment and balance the advantage or disadvantage of the medical step under consideration. While the parents’ wishes may be relevant, they are not determinative.”

Children’s Medical Treatment

When should a parent consent to medical treatment?

Wherever doing so would be against would be in the child’s best interest.

For example, in the case of Minister for Health vs AS (2004) 29 WAR 517, Justice Pullin said:

“Where…the child will die if lifesaving treatment is not performed, which has a good prospect of a long-term cure, it is beyond doubt that it is in the child’s best interests to receive that treatment”.

When might the court overrule a parent’s decision regarding medical treatment?

In a recent case a child had cancer and doctors recommended chemotherapy treatment.

The parents thought it would be in the child’s best interests to treat him using alternative therapies focusing on nutrition.

The Court and an Ethics Committee considered that following the parents’ wishes would not be in the child’s best interests and ordered chemotherapy.

Parental Responsibility

What does parental responsibility mean?

The Family Law Act 1975 uses the term “parental responsibility” meaning “…all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.”

How can the court alter my parental responsibility?

One way which a court can do this is with a “parenting order”, limiting or expanding a parent’s responsibility to the child. An order can also determine how those responsibilities are to be carried out.

Will I still have parental responsibility after I adopt my child?

Under the Family Law Act 1975, a parent’s responsibility to the child ends, to whatever extent it existed beforehand, after the adoption by an authorised adopting parent.

Note that you will need the court’s permission to enter into adoption proceedings.