This week’s column looks at who is able to commence proceedings in a Court for Parenting Orders.
Who May Commence Proceedings?
An Application to the Court for a Parenting Order may be filed by anyone, but the Court can only make Orders in favour of a parent, the child, a grandparent or any person connected with the “care, welfare or development of the child”.
Court proceedings may be issued if a parent, the child or a party to the proceedings is either present or resident in Australia or an Australian citizen.
Orders can be sought in respect of all children, including children of married/de facto parents, adopted children, or children conceived through artificial conception or surrogacy.
What Does “Care, Welfare Or Development” Mean?
Cases that have come before the Courts have considered the involvement in the child’s life of the person who is seeking the Order.
The Court needs to decide whether Orders can be made in favour of that person, that is, is the person connected with either the “care, welfare or development” of the child. Each matter is unique.
What Does The Court Take Into Account?
The paramount consideration when making Parenting Orders is to ensure that the Orders are in the best interests of the child.
The primary considerations for the Court are the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from harm.
The Court can also consider any views expressed by the child in a report or by a lawyer representing the interests of the child (depending on the child’s age and maturity) or the willingness and ability of the parents to foster the relationship between the child and the other parent. These are just two of the many factors that a Court may weigh up when determining what orders to make for the child’s parenting.
Before any proceedings are commenced in a Court for Parenting Orders, the Family Law Act requires the parties to the dispute to make a genuine attempt at resolving the issues themselves, with the assistance of a Family Dispute Resolution practitioner. This mediation is compulsory, unless it is inappropriate for the mediation to proceed due to family violence or child abuse.
The mediation is an opportunity for separated parents, grandparents or other persons who are concerned with the care, welfare and development of the child to resolve the parenting arrangements by agreement and without having to go to Court.
If agreement can be reached, the parties may wish to enter into a Parenting Plan which sets out the agreement and the arrangements for the parenting of the child. A Parenting Plan cannot be enforced by a Court and you can seek legal advice about formalising any agreement reached.
If you would like further information please contact Andrew Crooke a member of our Family Law Team on 07 4616 9898.
Prepared by Andrew Crooke