When parents separate, they must make arrangements for the future care, welfare and development of their children. These arrangements may be agreed between the parents or formalised through parenting orders made by the Federal Circuit and Family Court of Australia.
Parenting orders are legally binding and set out the responsibilities and arrangements for children after separation. If parents cannot reach an agreement, the Court may make orders based on what it considers to be in the best interests of the child.
Parenting disputes can be complex and emotionally challenging. While most parents genuinely want what is best for their children, conflict, anxiety and unresolved issues can sometimes affect a parent’s ability to follow existing arrangements. When this occurs, the Court has powers to enforce, vary or discharge parenting orders where appropriate.
This article explains what parenting orders cover, what can happen when they are not followed, and how the Court approaches these disputes.
What Do Parenting Orders Cover?
Parenting orders are legally enforceable orders that set out arrangements for children after separation. They can deal with a range of issues, including:
- Who the children will live with.
- Who the children will spend time and communicate with, including parents, grandparents and other people significant in their lives.
- Who has responsibility for making decisions about the children’s daily care, welfare and development.
- How parents must consult with each other when making significant long-term decisions about the children.
Parenting orders may be made by agreement between parents or imposed by the Court if the parents cannot reach a resolution.
Before making any decision, the Court’s primary consideration is the best interests of the child.
The Importance of Following Parenting Orders
Parenting orders are binding and must be followed by all parties unless they are formally changed by agreement or through a Court application.
In parenting disputes, conflict between parents can sometimes result in one or both parties failing to comply with existing orders. However, ignoring parenting orders can have serious consequences, particularly where the behaviour impacts the child’s relationship with the other parent.
The Court recognises that parenting disputes can be emotionally difficult, but its focus remains on ensuring arrangements support the safety, wellbeing and best interests of children.
Court Reverses Parenting Orders in Favour of Father
The case of Ralton and Ralton [2017] FamCAFC 182 demonstrates the importance of parents complying with parenting orders and supporting children’s relationships with both parents where it is safe and appropriate.
In this matter, the Full Court dismissed an appeal by the mother and upheld the decision in Ralton and Ralton [2016] FCCA 1832 to discharge earlier parenting orders and significantly change the care arrangements for the children.
The previous orders, made in 2010, were replaced so that:
- The children would live with the father instead of the mother.
- The father would have sole parental responsibility for major decisions affecting the children.
- The father was able to enrol the children at a particular school.
- The mother’s time with the children was temporarily suspended, except for specified supervised visits.
After a six-month adjustment period, the mother was able to spend time with the children on alternate weekends and during half of the school holidays.
Why Did the Court Change the Parenting Orders?
The decision may appear significant because the children had been well cared for by the mother and there were no findings of physical danger.
However, the Court determined that the children were at risk of psychological harm due to the mother’s ongoing conduct and attempts to damage their relationship with their father.
The Court considered that preserving a meaningful relationship between children and both parents was important where there were no safety concerns preventing that relationship.
Parental Alienation in Family Law Matters
One of the factors considered by the Court when determining a child’s best interests is the benefit of children having a meaningful relationship with both parents.
Parental alienation generally refers to situations where one parent deliberately attempts to damage or interfere with a child’s relationship with the other parent.
In Ralton and Ralton, the Court found that the mother had consistently opposed the children spending time with their father. The Court considered that her conduct had contributed to the children becoming fearful and anxious about their relationship with him.
The Court was assisted by evidence including family counsellor reports and the views of an Independent Children’s Lawyer.
For more information about parenting arrangements and resolving family disputes, visit our family law services page.
What Happens if Someone Breaches a Parenting Order?
If a parent fails to comply with a parenting order, the other party may apply to the Court for a contravention application.
The Court will consider:
- Whether the parenting order was breached.
- The seriousness of the breach.
- Whether the person had a reasonable excuse for failing to comply.
If a breach is established, the Court may make a range of orders depending on the circumstances, including:
- Requiring one or both parents to attend a post-separation parenting program.
- Adjourning proceedings to allow an application to vary, discharge or suspend existing orders.
- Changing parenting arrangements so children spend more time with the affected parent.
- Ordering additional “make-up time” with the affected parent.
- Compensating a parent for expenses caused by the breach.
- Requiring the parent who breached the order to enter into a good behaviour bond.
- Ordering counselling, dispute resolution or community service.
- Imposing a fine, costs order or, in serious cases, imprisonment.
However, the Court’s overriding consideration remains the best interests of the child. This means that even where a breach is proven, the Court may decide that no further action is appropriate if making an order would not benefit the child.
Can Parenting Orders Be Changed?
Parenting orders can be changed if circumstances significantly change or if existing arrangements are no longer workable.
Parents may agree to new arrangements and formalise them through updated parenting orders. If an agreement cannot be reached, either parent may apply to the Court to vary the existing orders.
Before making an application, parents may be required to attempt family dispute resolution, unless an exemption applies.
Conclusion: The Importance of Effective Co-Parenting
Parenting orders are legally binding, and the Court has the power to enforce, vary or discharge orders where necessary.
Every parenting matter is different, and the outcome will depend on the individual circumstances. However, the guiding principle will always be what is in the best interests of the children.
Where possible, parents should work together to reduce conflict and support their children’s relationship with both parents. However, if parenting orders are being breached or no longer reflect the needs of your family, seeking legal advice can help you understand your options.
Need Advice About Parenting Orders?
Our experienced family lawyers can provide advice about parenting arrangements, parenting orders and family law disputes.
Contact Somerville Laundry Lomax for a confidential discussion. Call 02 6621 2481 or email [email protected].
This article provides general information only and is not intended to be legal advice. You should obtain professional advice specific to your circumstances.