What you need to know about Parenting Orders in NSW

1. How Can I Commence an Application for Parenting Orders?

Before you can file your application you must complete certain pre-action procedures.
The pre-action procedures are set out in Rules. They require the following:
● The applicant must give a copy of the pre-action procedures to the other party and invite them to participate in primary dispute resolution.● Parties (unless exempt) must participate in dispute resolution services, such as mediation, counselling, negotiation, conciliation or arbitration.● If dispute resolution is unsuccessful, the applicant must give notify the other party of their intention to commence an application in writing, stating:
1. the issues in dispute,2. the orders that will be sought if a case is started, and3. A genuine offer to resolve the issues.
● The letter must state how long the other party has to respond and a period of at least 14 days must be allowed.● The other party must reply to the letter within the required time, stating whether they agree to the offer or not. If not, they must state in their letter:the issues they believe are in dispute,
1. the orders they will seek if a case is started, and2. a genuine counter-offer to resolve the matter.
● The letter must state how long the other party has to respond and a period of at least 14 days must be allowed.● Both parties must comply, as far as practicable, with the duty of disclosure.● Unless exempt from these procedures, a party should only start court proceedings if the other party does not respond to a notice of intention to start a case, or if no agreement can be reached after a reasonable attempt to settle the matter.
Anyone who does not comply with these requirements (unless exempt) risks serious consequences, including costs penalties. Where there is unreasonable non-compliance, the court may order the non-complying party to pay all or part of the costs of the other party or parties in the case. The court may also take compliance or non-compliance into account when making orders about case management.

2. What is Considered When Parenting Orders Are Made?

Section 60 CA of the Family Law Act 1975 states:

“In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.”

Section 60 CC of the Act sets out what the court must consider when making parenting orders. The court will do this by looking at the following considerations.

The primary considerations are:

1. The benefit of children having a meaningful relationship with both parents;
2. The need to protect children from physical and psychological harm. This includes children seeing family violence, being neglected, or being physically or psychologically hurt; and
3. The need to protect a child from physical and psychological harm, including family violence and abuse, will come first ahead of all other considerations.
The additional considerations include the following:

1. Children’s views—the court will look at how much children understand and how mature they are; children don’t have to express views if they prefer not to;
2. The kind of relationship children have with their parents and other significant people, including grandparents, siblings and other relatives;
3. How much each parent has participated in making decisions about major long-term issues affecting the children including;
4. How much time each parent has spent and communicated with the children during and after the relationship;
5. Whether each parent has fulfilled or failed to fulfil their parental obligations (eg paying child support on time);
6. The likely effect of any change to where children have been living or staying, including separating them from either parent, grandparents, siblings, any other relatives or other people important to their welfare;
7. The practical difficulty and expense of children seeing each parent, and whether that difficulty will affect their right to have a relationship with each parent; this includes spending time with or communicating with each parent;
8. How much each parent and any other person (including grandparents and other relatives) can provide for the children’s physical, emotional and intellectual needs;
9. The children’s and each parent’s maturity, background (including culture and traditions), sex and lifestyle, and anything else about the children the court thinks is important;
10. Aboriginal or Torres Strait Islander children’s right to enjoy their culture (including with others of that culture);
11. Each parent’s attitude to the responsibilities of being a parent and towards their children in general;
12. Any family violence involving the children or their family member;
13. Any interim, final, non-contested or police issued family violence orders that include children or their family member;
14. Whether the orders the people involved have applied for will reduce the risk of further court proceedings;
15. Any other considerations the court thinks important;
16. The history of the relationship and the children’s care; and
17. Events and circumstances that have happened since the parents separated.

3. What are the Children’s views?

Children don’t usually go into court.

Children’s attitudes and views may be made known to the court in a family report or through an independent children’s lawyer.

4. What is Parental Responsibility?

When making parenting orders, the court will presume it’s in the children’s best interests for the parents to have equal shared parental responsibility, unless there has been child abuse or family violence by a parent or a person who lives with the parent.

Other evidence may also convince the court equal shared parental responsibility isn’t in the children’s best interests.

Equal shared parental responsibility means both parents share decision making for major long-term issues about the children’s:

1. Education
2. Religious and cultural upbringing
3. Health
4. Name
5. Living arrangements.
This however doesn’t include day-to-day decisions about the children’s care, such as what the children eat or wear. Such decisions are made by the parent the child is living with or spending time with.

If the court decides both parents have equal shared parental responsibility, then they must try to reach an agreement about major long-term decisions.

Sometimes the relationship or circumstances of parents is such that equal shared parent responsibility is not possible.

In such cases the court may order that a parent have sole parental responsibility for the children’s medium to long term issues.

5. Equal time with Children

Equal shared parental responsibility is different to a child spending equal time with both parents.

If the court presumes that the parents should have equal shared parental responsibility, it must look at whether spending equal time with each parent would be in the child’s best interests and also whether it is reasonably practical.

6. Substantial and significant time

Where equal time is not appropriate, the court must look at whether an order for “substantial and significant time” is a practical alternative and in the best interests of the child.
“Substantial and significant time” means that the child spends time with a parent on weekends, holidays and weekdays so that the opportunity exists for time to be spent together in daily routine activities and also for events that are important to the child such as sporting events, birthdays and school activities.
Section 65DAA of the Act sets out what is to be considered when deciding whether an order should be made for either equal time or substantial and significant time. The court will consider the following:
● How far apart the parents live from one another;● Each parent’s ability to care for the child currently and in the future;● The ability of both parents to talk to each other and resolve any difficulties they might face with parenting arrangements, both currently and in the future;● How either arrangement will affect the children; and● Anything else that the court thinks is important.

7. Wills

Wills are important in ensuring how you would like things handled after you have passed on. A will spells out exactly what you want with assets, property and your last wishes.
● You decide who will take care of your minor children. No one knows your kids better than you. Without a will, the court will take it upon itself to choose among family members or a state-appointed guardian. Having a will allows you to appoint the person you want to raise your children or ensures that this duty is not given to someone you don’t want to raise your children.● You decide how your estate will be distributed. If you die without a will, there is no guarantee that your intended desires will be carried out. Having a will may help to minimise any family disputes and tension about how your estate is distributed.To avoid a lengthy probate process. Contrary to common belief, all estates of a certain size must go through the probate process, with or without a will. Having a will, however, speeds up the probate process and informs the court how you’d like your estate divided.Minimise taxes. By having a will you can establish testamentary trusts which may have tax benefits for your beneficiaries.● You decide who will wind up the affairs of your estate. Executors make sure all your affairs are in order, including paying off bills, canceling your credit cards, and notifying the bank and other business establishments of the death. Because executors play the biggest role in the administration of your estate, you’ll want to be sure to appoint someone who is honest, trustworthy, and organised (which may or may not always be a family member).● Make gifts and donations. Gifts can allow your legacy to live on and reflect your personal values and interests.Remember, you can change your mind – and your will – at any time while you’re still alive. Wills should be updated every time life circumstances change.

To get help with parenting orders and family law in NSW, contact Alan Rigas Solicitors on (02) 9635 5333.

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