Stability is a critical part of a healthy upbringing. In family law, working together for your child’s best interests is vital to their welfare. Divorced couples who remain civil have a clear advantage when co-parenting, particularly when complying with an existing parenting order, parental consent orders, or planning to apply for parenting orders. The Federal Circuit and Family Court of Australia encourages guardians to cooperate and make decisions that promote stability and security for their children.
Developing parenting arrangements begins with a parenting agreement. In the previous parenting plan article, we discussed the role of parenting agreement. The next step for most couples is to seek a parenting order to legally establish each party’s responsibilities. The legal force behind parenting consent orders makes them the recommended form of parental arrangement. Applying to the court for parenting orders should be a last resort. Child support is a separate issue from parenting orders or a property settlement.
Key takeaways
Consent orders protect a child’s interests and their relationship with their guardians and relatives.
The Family Law Act was amended to streamline the criteria the Court uses to determine what’s in a child’s interests.
The Court no longer presumes equal shared responsibility.
Parenting agreements can be turned into consent orders by applying to the Court.
Parties can use litigation to secure a parenting order if they can’t agree.
A family lawyer provides critical support during parenting matters.
Parental consent order objectives
Above all else, a consent order’s core objective is to protect the child’s interests. Under the Family Law Act, parental consent orders seek to achieve this in several ways:
Children should know and receive the care of both guardians;
Orders should ensure children spend time and communicate with both guardians and any other relative significant to their care, regularly;
Guardians are jointly responsible for the upbringing of their children;
Guardians should cooperate in planning for their child’s future;
Children should be able to enjoy their culture and associate with people who share that culture.
Along with the child’s interests, the above factors emphasise parental responsibilities and the importance of preserving healthy family relationships. When guardians cannot agree on parenting arrangements, they may need to apply for parenting orders to formalise those responsibilities and provide clarity moving forward.
A parenting order is a legally binding decision made by the Court to outline care arrangements for the child. In some cases, parents can agree and apply for consent orders, which the Court can approve and turn into enforceable court orders. How do parental consent orders handle these issues?
Family Law Amendment Act 2023
In May 2024, the Federal Circuit and Family Court of Australia introduced amendments to the Family Law Act. These amendments made significant changes to how the Court handles parenting matters, including how parenting orders are made.
The changes focused on strengthening family relationships and ensuring that court orders reflect what is in a child’s welfare. As part of these reforms, guardians are encouraged to apply for parenting orders only when necessary, with a greater emphasis on cooperation and reducing conflict where possible.
Child’s best interests pre-amendment
Here’s how a child’s best interests were assessed before the amendment. Two primary considerations governed the test for determining a child’s best interests:
The child should have a meaningful relationship with both guardians;
Protection for the child from physical or psychological child abuse or exposure to such abuse.
While both points were important, the second always preceded the first.
Other considerations included the following:
The nature of the child’s relationship with both parents and other relatives;
The degree to which each parent has sought to fulfil their responsibilities;
The effects of changing a child’s circumstances, including their ability to have a relationship with both parents and other relatives;
The expense and practicality of a child maintaining a relationship with both parents.
Child’s best interests post-amendment
The amendment streamlined the criteria used to determine what parental arrangement is in the child’s best interests. It also clarified the process for parents who need to apply for parenting orders when they cannot reach an agreement. The Court will decide on the appropriate court orders based on clear, simplified factors focused on the child’s welfare. There are now six factors used by the Family Court.
The safety of the child and anyone caring for the child. This includes considering any history of family violence or protection orders.
The child’s views. This depends on the child’s maturity level.
The developmental, psychological, emotional, and cultural needs of the child.
The capacity of each person with responsibility for the child to provide for these needs.
The benefit to the child of having a meaningful relationship with their parents and other significant people. This may include siblings and extended family.
Any other consideration that the Court considers relevant.
Equal shared parental responsibility
Parental responsibility means all the obligations a person has for their child’s welfare. Before the amendment, the Court presumed that each party should have equal shared parental responsibility. This meant that parents were expected to jointly make decisions about major long-term issues affecting their children, such as education, healthcare, or relocating to a new location.
When the Court makes parenting orders, it considers whether shared parental responsibility is appropriate based on the child’s circumstances. These principles apply consistently across Australia, including South Australia, to ensure that parenting decisions support the child’s care, welfare, and development.
When parents could not agree on these matters, the Court would decide the outcome, often after considering a family report. Parents facing ongoing disputes would need to proceed with parenting orders applying to formalise their arrangements and ensure the court orders reflected the child’s best interests. Major long-term decisions include:
Planning for a child’s current and future education;
Maintaining a child’s religious and cultural development;
Medical treatment and care related to the child’s health;
Altering a child’s living arrangements in ways that would inhibit their ability to see a parent.
Equal shared parental responsibility relates to parents’ rights and duties in deciding their child’s upbringing. It does not imply that parents should spend equal time with their children. In parenting order applications, the focus is on the child’s welfare, rather than dividing time equally.
Parents are expected to make an effort to reach an agreement that supports the child’s welfare and recognises the child’s cultural background, including if the child is of Aboriginal or Torres Strait Islander descent. When parents cannot reach an agreement and one parent breaches parenting orders, the Court may issue a location order to find the child or a recovery order to ensure the child is safely returned to the guardian.
Parental responsibility post-amendment
The amendment removed the presumption of equal shared parental responsibility. There were concerns that the Court was conflating the need for equal responsibility with equal time, particularly when deciding on major long-term issues affecting a child’s care, welfare or development. This may have led to parties being pressured into accepting parental arrangements that exposed children to unsafe conditions.
The family law amendments clarify that the Court’s decisions should focus solely on what agreements are in the child’s welfare, with the most important consideration being the child’s safety and wellbeing. These changes apply across all Australian jurisdictions, including South Australia, and aim to ensure that parenting orders reflect what is truly best for the child.
Many clients wonder whether the amendment affects existing parenting orders. Any parenting order made before 6 May 2024 will not be affected and will continue to apply as originally ordered. In South Australia and all other Australian jurisdictions, these orders remain legally binding unless varied by the Court.
If a person wishes to change existing orders, they must demonstrate a significant change in circumstances. The Court may also consider the views of relatives, the recommendations of a family consultant, or the findings in a family report before deciding whether to vary or revoke the existing parenting orders.
Applying for consent orders
When you have a parenting plan in place, you may submit it to the Court to have it turned into a parental consent order. We highly recommend seeking legal advice first to ensure the Court grants the order the first time. In most cases, applicants must participate in family conflict resolution before applying for a parenting order. If the Family Court rejects an application, you must spend extra time and money reapplying. Our previous article about the divorce cost includes a detailed rundown of family law fees.
Litigation
The Court can help parents settle a parenting dispute through court orders. The proceeding commences when a parent files an initiating application, requesting specific parenting arrangements. These orders may cover who the child lives with, how much time they spend with each parent or the relatives, and how they spend special occasions such as birthdays or holidays.
In urgent situations where a child’s safety is at risk, parents can request an urgent hearing. The Court applies principles outlined by the Attorney-General’s Department to ensure that parenting orders promote the best welfare of the dependent and provide stability in the children’s lives.
Family dispute resolution
The Court requires parties to undergo conflict resolution before litigating family law matters. This is one of the mandatory pre-action procedures designed to encourage parents to resolve their disputes without going to court. Once the parties have made a genuine effort to settle their differences, they will receive a Genuine Steps certificate confirming their participation in conflict resolution.
In some cases, a family consultant may be involved to assist in addressing parenting concerns. The law recognises the importance of stability in children’s lives and aims to prevent children from being caught in ongoing conflict, particularly when a parent moves interstate or makes significant changes affecting care agreements.
Family violence exception
In circumstances where there is a risk of family violence, a party may be excused from attending dispute resolution to protect their safety. In such cases, the Court asks the applicant to submit an affidavit explaining the circumstances and why dispute resolution is not appropriate. A family consultant may later assist in assessing safety concerns and providing recommendations to the Court.
When the Court makes parenting orders in these situations, it will follow guidelines set by the Attorney-General’s Department and consider whether the dependent can safely spend time with each parent. The Court will also examine any other aspect of the child’s welfare to ensure their welfare are protected.
Court hearings
The parties must attend court hearings to secure parenting orders. There may be an interim hearing to decide on any interim orders that have been sought. These orders will be in force until final orders can organised at a final hearing.
Each party will make their case before the judge. They must provide supporting evidence, which may include a family report from a child expert. Witnesses should be available for cross-examination. After arguing their case, the judge will decide on the orders immediately after the hearing, or within three months.
For DIY consent orders, you can read this blog.
Breaching a consent order
Since parental consent orders are legally binding, breaching them will attract penalties. The nature of the penalty depends on several factors, including the severity and frequency of the breach.
In some cases, the Court may request assistance from a family consultant to assess the impact of the breach on the son or daughter’s wellbeing. If one parent fails to comply with the orders, the Court may also issue a location order to find the dependent or a recovery order to return the son or daughter to the other parent or guardian.
Initially, the court may:
Order the offending party to attend a parenting program from an approved counselling service;
Alter the order to allow the other party to recoup time lost with the dependent or other favourable agreements.
If a parent continues to contravene the order, the Court may impose more severe consequences, including:
Covering any losses incurred from the breach;
Paying the other parent’s legal expenses;
Community service;
A fine or jail term of up to one year.
Parties can avoid a breach by offering a reasonable excuse, though the Court will decide whether that excuse is valid based on the circumstances of the case. Reasonable excuses include the following:
You didn’t understand your obligations under the order;
You believed your actions were necessary to protect the child’s health and safety;
The length of the breach was no longer than was required to protect the child’s health and safety.
Ensuring your parental consent orders are correctly drafted is vital to successful co-parenting. With expert legal advice, you can be confident the Court will accept your arrangements. Organisations such as Legal Aid Queensland can provide free legal advice to co-parents.
The Australian government funds a range of legal assistance services including Legal Aid Commissions and Community Legal Centres. If you want to improve your co-parenting relationship, we advise reviewing our complete list of co-parenting apps.
Seek legal assistance for your parenting arrangements
Ensuring your parental consent orders are correctly drafted is vital to successful co-parenting. With expert legal advice, you can be confident the Court will accept your proposed parenting arrangements. If the Court asks for further information or clarification, a family consultant may also be appointed to assist in assessing the child’s needs and family dynamics. When one parent disagrees with the proposed arrangements, the Court will decide based on what is in the child’s welfare and best interests.
Organisations such as Legal Aid Queensland can provide free legal advice to co-guardians. If you are wanting to improve your co-parenting relationship, we advise reviewing our complete list of co-parenting apps.
Alternatively, Shanahan Family Law is ideally placed to provide legal advice for your application. Contact us today to set up an initial free discovery call.
Conclusion
Parenting orders are a critical part of the divorce process. They should protect a child’s welfare and cover all parental duties. The Family Law Act has been amended to better reflect what’s in a child’s welfare. Parenting matters can form the basis for a consent order. Parenting orders can be granted through litigation when there’s a dispute. A range of penalties may apply if an order is breached. The penalty can depend on the severity and regularity of the breach.
Shanahan Family Lawyer, are not just knowledgeable and professional they also care about your situation. It felt good having someone on my side and going the extra mile to achieve the outcomes I was needing.
- Rebecca Smith
Sound legal advice is important when handling parenting matters. Shanahan Family Law is here to help.
