Parenting orders and parenting plans
The Family Law Reform Act 1995 (Cth) (“FLR Act”) abolished the concepts of custody, access and guardianship and replaced them with parenting orders. A parenting order is a court order that covers all the aspects of caring for a child (e.g. where the child will live, what time they spend with their parents, financial support, etc.). Parenting orders are used when separated or divorced parents cannot agree on a parenting plan.
The FLR Act (s 63B) encourages parents to resolve their own problems and to enter into parenting plans rather than to seek a parenting order from a court.
Parenting plans are written agreements between parents who are separated or divorced that cover the arrangement for the care and financial support of their children.
For more information, see Parental responsibilities and child support.
In Victoria, children subject to parenting orders include:
• children born to married parents;
• ex-nuptial children (i.e. children born to unmarried parents);
• adopted children;
• child born as a result of artificial conception procedures (s 60H).
The Family Law Act 1975 (Cth) (“FL Act”) is administered by the Commonwealth; certain state powers have been transferred to the Commonwealth by the Commonwealth Powers (Family Law – Children) Act 1986 (Vic). This has allowed the Commonwealth to extend its laws under the FL Act to cover all children in respect of parenting issues in Victoria. This includes children born to parents in a de facto relationship.
Each of the parents of a child under 18 covered by the FL Act has parental responsibility for the child. If there is a dispute, the court can make orders about the child’s welfare.
Proceedings under the FL Act may be begun by:
• either or both of the parents;
• the child (via a litigation guardian);
• any person who has an interest in the child’s welfare; or
• a grandparent of the child.
An order about a child’s welfare cannot be made if the child is over 18 years, married or in a de facto relationship (s 65H(1) FL Act). An order ceases to have effect if a child turns 18, marries or forms a de facto relationship.
In any dispute over parenting issues, it is first necessary to decide which law applies.
Among the most significant changes brought about by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) was the requirement that when making a parenting order, a court must apply a presumption that it is in the best interests of the child for parents to have equal shared parental responsibility (s 61DA FL Act).
“Parental responsibility” is defined in section 61B of FL Act as “all duties, powers, responsibilities and authority which, by law, parents have in relation to children”. Parents with “shared parental responsibility” must consult each other in making decisions about major long-term issues regarding the child and make genuine attempts to come to joint decisions (s 65DAC FL Act).
The presumption that it is in the child’s best interests to have equal shared parental responsibility can be rebutted if there are reasonable grounds to believe that a parent has abused the child or engaged in family violence, or if it is not in the best interests of the child for the parents to have equal shared parental responsibility (s 61DA FL Act).
If the court finds that the presumption applies, it must consider whether the child spending equal time or substantial and significant time with both parents would be reasonably practicable and in the child’s best interest. “Substantial and significant time” is defined in section 65DAA(3) of the FL Act as including both weekends and weekdays, allowing the parent to be involved in the child’s daily routine. In deciding whether an order is “reasonably practicable”, the court must consider the distance between parents’ homes, the parents’ capacity to facilitate the arrangement, the parents’ capacity to communicate with each other and resolve difficulties, and the impact of the arrangement on the child (s 65DAA(5) FL Act).
Section 60CC of the FL Act, which replaces repealed section 68F(2), lists the factors taken into account by the court in determining orders for the best interests of the child. The factors are divided into “primary” and “additional” considerations.
The primary considerations are:
• the benefit to the child of having a meaningful relationship with both parents; and
• the need to protect the child from physical and psychological harm resulting from exposure to abuse, neglect or family violence (s 60CC(2)).
Additional considerations include:
• any views expressed by the child;
• the likely effect of any changes in the child’s circumstances; and
• the practical difficulty and expense of the child spending time with each parent (s 60CC(3)).
The court must also consider the extent to which each of the child’s parents has fulfilled their responsibilities as a parent (s 60CC(4)). For parents with whom the child is living, such responsibilities include facilitating the other parent spending time with the child and communicating with the other parent about major long-term issues in relation to the child. For parents who do not live with the child, such responsibilities include paying child support and taking opportunities to spend time with the child.
There is a special provision in the FL Act that allows a judge to order that a child be represented by an independent children’s lawyer (ICL) in Family Court proceedings (s 68L). The role of the ICL is to form an independent view of what is in the best interests of the child and inform the court of that view.
The ICL is not bound by a child’s instructions but acts on the basis of the child’s best interests. Legal representation is generally funded through Victoria Legal Aid.