Parenting Orders after Separation or Divorce
Are you and your former partner unable to agree on arrangements for your children?
Sometimes, regardless of how much time and effort you spend trying to negotiate a parenting plan, there’s no way to agree. A court can intervene and make parenting orders when there’s no other solution.
What are parenting orders?
Parenting orders can be made by consent, which means that both parties agree and give their consent to court to make the orders. For more information, see our parenting consent orders page.
When the parties can’t reach an agreement, either party can apply to court for orders. Usually, the Federal Court of Australia (FCA) or the Federal Circuit Court (FCC) will hear the applications.
A court must review the evidence before making an order. Evidence may include documents, subpoenaed (court-ordered) material, witness statements, expert reports and anything else that will assist the court to reach a decision. This type of hearing is known as a trial or final hearing. A court process is sometimes also referred to as litigation.
It can be long, expensive and complicated, so if there’s any chance of reaching agreement without the need for a trial, it may be worth exploring. We’ll provide you with detailed advice about all your options.
What kind of things are considered by a court when making a parenting order?
A court can make parenting orders about:
- Financial support, meaning which parent has responsibility to pay for what expenses
- Living arrangements
- Division of time between each parent (or with other parties, for example grandparents)
- How parents make decisions for the children
- How the children are to communicate with each parent
- How to handle any variations to the orders
- Dispute resolution
- How the children spend their time on special occasions, such as birthdays and Christmas
- Arrangements for changeover of care from one parent to the other
- Medical care
- Education and activities
- Any other aspect of the care, welfare or development of the children
Orders can cover specific details, for example:
- School pick-up times
- Holidays, including whether a parent can travel overseas with the children
- Prohibiting the parents from criticising one another in the children’s presence
The most important consideration is the children’s best interests. But a court can also consider:
- The conduct of both parents
- expert testimony (for example, from family counsellors)
- the children’s wishes
- whether the children spend time with others (for example, grandparents)
- Any history of family violence
Is it possible to change the parenting orders?
The court orders usually remain in place until each child reaches the age of 18. You can apply to change them, but courts are often reluctant to do so. There must be a compelling reason to seek a change. You’ll need our expert legal advice to make sure the orders will meet the long-term needs of both you and your children, and also if either party is seeking any variations to the orders.
Can I get an order to relocate with my children?
If you’re thinking about moving a significant distance from your former partner, you may need to seek orders from the court to do so.
A significant distance may include overseas, interstate, from a metropolitan area to a regional area (or vice versa) or even to a suburb that’s a considerable distance from where you currently live.
As a rule of thumb, any move that disrupts arrangements under the current order will need careful consideration.
When planning a move, the first step is usually to seek the consent of the other parent. They may be happy enough to support a change in arrangements. And if that’s the case, we can draft a new parenting plan and then ask the court to make consent orders.
But if there’s no consent, you’ll need to get new court orders. This is a delicate process because Australian family law gives children the right to have meaningful relationships with both their parents. The court will only grant the order if it’s in your children’s best interests.
If you’re planning on relocating, contact us for advice and assistance as soon as possible. We’ve helped many clients secure orders to allow them to move. We can help you too.
Do I have to get a parenting order to take my children overseas?
Where there’s an agreement or orders in place, both parents need to give their written consent for every overseas trip planned for the child.
Consent is required, even if a passport has already been issued for the child.
If you’re concerned that your former partner may try to take your children overseas without your consent, contact us urgently. We can alert the Australian government who can act to prevent your child from leaving the country.
If you wish to travel overseas with your child, but your partner won’t consent, we can apply to court for orders that will allow the trip. Contact us for advice.
What happens if there’s a breach of the parenting orders?
Any failure to comply with court orders is serious. Like other courts, the FCA and FCC have power to take action for a breach. For example, they can:
- Issue further orders requiring compliance
- Fine the person for the breach
- Find that the person is in contempt of court (meaning that they have disobeyed or disrespected the court) and order their imprisonment
- Order the party in breach to pay the other party’s legal costs and expenses
In 2017, a parent was sentenced to 18 months’ imprisonment for failing to comply with the FCA’s orders. The FCA found the failure was deliberate, and the breach was wilful and flagrant. The lesson is that failure to comply with court orders is serious, as are the consequences.
In another family law case, a court decided that one party’s breach of parenting orders wasn’t in the best interests of the children. The breach became a key consideration for the court, and so the decision went against that party.
These decisions show how important it is to obey court orders. If you’re unhappy with the orders, the best course is to seek our legal advice as soon as possible.
If you’re concerned about your former partner being in breach of court orders, you’ll need urgent legal advice from us. We may need to make an application to ask the court to take action. If you’re concerned that you may have breached court orders, get in touch with us as soon as possible so we can work out how best to assist you.