Who can make an application to the court about a child’s living arrangements?
If agreement about children’s issues cannot be reached or if there are issues of urgency or family violence, you can make an application for parenting orders.
Either of a child’s parents, grandparents, or any other person concerned with the welfare of the child may apply to the court for a parenting order.
The Federal Circuit Court of Australia hears most applications for parenting orders. More complex matters are heard by the Family Court of Australia.
How does the court make decisions about children’s living arrangements?
The court is guided by the principle that the 'best interests' of a child is the most important consideration in making any decision about a child’s living arrangements. Under the Family Law Act, it is presumed that parents will have equal shared parental responsibility for their child or children. This means that parents will need to consult with each other and jointly decide major long term issues, such as education, health, and religion. Sometimes, the Court may decide that equal shared parental responsibility is not in the child’s best interests.
The court will determine whom the child lives with and how much time the child will spend with the other parent by reference to the child’s best interests. The primary considerations that the court will take into account are:
- The benefit to the child of having a meaningful relationship with each parent; and
- The need to protect the child from physical or psychological harm, or being exposed or subjected to abuse, neglect, or family violence.
The secondary considerations the court will take into account include, but are not limited to, any views expressed by the child, the nature of the child’s relationship with each parent, and the extent to which each parent has participated in decision-making about the child.
When will a court make an order for a child to spend equal time with both parents?
If the court presumes that it is in the best interests of a child for his or her parents to equally share parental responsibility, then the court must consider making an order for the child to spend equal time with both parents. This does not mean that the court must make such an order, but only that the order must be considered. The court will consider issues such as:
- The age and maturity of the child.
- The practical difficulty of implementing an order for equal time (for example, do the parents live within a reasonable distance of each other?)
- The co-parenting ability of the parents.
If the court takes the view that an order for equal time is not in the best interests of the child, the court must then consider making an order that the child spend substantial and significant time with the non-resident parent.
What will happen at my first court date?
Generally, the court will not radically change the child’s existing care arrangements unless there is evidence which strongly suggests that a change is required. This may include issues such as family violence.
Ordinarily, the court will continue the child’s existing care arrangements and is likely to refer the parties to participate in a mediation session known as a ‘section 11F’ conference.
Can I try to mediate with my former partner?
Unless leave of the court is obtained, it is a requirement that parties attempt mediation prior to issuing court proceedings. Once proceedings are issued, the parties may be directed to participate in mediation and family dispute resolution as part of the court process.
What should I do if I think my former partner is going to take my child against my wishes?
If you believe your child is going to be removed from your care by your former partner, you are able to seek an urgent order from the court that the other party be prevented from removing the child. This is particularly important if you believe your former partner may take your child overseas. In this situation, it is possible to seek an order from the court that the child be placed on the ‘Airport Watch List’ to prevent them being taken overseas without your consent.
If your child has been unlawfully removed from your care by your former partner, you are able to seek an urgent order from the court that the child be located and recovered.