Your Essential Guide to Parenting Orders
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Parenting Orders are an order issued by either the Family Court or the Federal Circuit Court that outlines parenting arrangements for any children of a relationship. Parenting orders can be entered into by the consent of both parties or, where the parties cannot agree, are ordered by the court after a trial. It’s important to remember that this guide should not be relied upon in deciding whether it is appropriate for you to make an application to the court. You should seek legal advice and have both your domestic violence orders and parenting orders considered by a legal professional before taking any further steps. Empowering people who are navigating Parenting Orders and Protection Orders is a big part of what we do. If you need to speak to someone, follow the link through to our contact page at www.forgelegal.net/contact and we will reach out to arrange an appointment to further discuss your circumstances.
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Table of Contents
01 02 03 04 05 06 07
What is a Parenting Order and do they need to be complied with? What are domestic violence orders and their compliance regulations? What happens when orders conflict? What are the practical effects of these conflicts? What can you do if this applies to you? Under what circumstances can a Parenting Order be suspended? What do I do once a Parenting Order has been suspended?
01
What is a Parenting Order and do they need to be complied with?
Family is not an important thing, it’s everything.
A Parenting Order is a set of terms issued by either the Family Court or the Federal Circuit Court which outlines parenting arrangements for any children of a relationship. Parenting Orders can either be: •
Entered into by the consent of both parties.
•
When the parties cannot agree, are ordered into by the court after a trial.
Parenting Orders are legally enforceable. This means that if a party does not comply with part of the Parenting Order, they are said to have contravened the order. Depending on the type of contravention, a party can then apply to the Court under a contravention application. There are penalties for parties who are found by the court to have contravened Parenting Orders.
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02
What are domestic violence orders and their compliance regulations?
A domestic violence order, often called a Protection Order, is a set of terms issued by a Magistrate in the Magistrates Court. A Protection Order will be made after an Application for Protection Order, where an act of domestic violence is found to have occurred. This can include a wide variety of terms, most commonly that the respondent be
of good behaviour and not commit an act of domestic violence. If you do not comply with the terms of a Protection Order, the breach could be reported to the police and, if you are charged and found guilty of having committed an act which is contrary to the terms of the Protection Order, you will have committed a criminal offence.
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03
What happens when orders conflict?
A common example of inconsistent orders are orders relating to changeovers. It is common for a child’s school to be listed in a Protection Order as a place the respondent (being the person the Protection Order application was brought against) is not to approach. Parenting Orders often provide for changeovers to occur at the child’s school where the child is of school age and changeover is occurring on a business day. What this means practically is that if the respondent — in complying with the Parenting Orders — attends the child’s school to pick them up, they will be in breach of the protection order which can have serious consequences. Until recently, the position was that the Parenting Orders prevailed but amentments have since changed this position.
The Domestic Violence Act 2012 (Qld) requires the Court to consider any existing Parenting Orders but does not limit their power to make protection orders that are inconsistent with the existing Parenting Orders. Importantly, when considering whether a Protection Order will contradict a Parenting Order, the court must not reduce the level of protection afforded for the purpose of trying to ensure consistency with a family law order.
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04
What are the practical effects of these conflicts?
Parenting proceedings and domestic violence proceedings are often interconnected. Magistrates are aware of this and the implications orders impacting upon parenting orders may have on parents. Accordingly, many Magistrates have opted to include additional terms when making a Protection Order which effectively preclude a term of the Protection Order if it impacts upon an existing Parenting Order. An example is outlined here for you. Typical term contained in a Protection Order: “The respondent is prohibited from following or approaching to within 1000 metres of the aggrieved when the aggrieved is at any place”
Notation made by a Magistrate in consideration of the practical implementation of a Parenting Order: “This condition does not apply when having contact with a child or children as set out in writing between the parties in compliance with an order of a court, or when having contact authorised by a representative of the Department of Communities (Child Safety) with a child or children” If a clause such as the above has not been included in your Protection Order and the provisions of the Protection Order essentially prohibit your compliance with Parenting Orders, there are ways you can rectify this.
Family gives you the roots to stand tall and strong.
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05
What can you do if this applies to you?
Variation
Apply to the court
If both parties agree that the inconsistency between the orders is impractical and needs to be rectified, the easiest way to do this is to apply to vary the protection order to remove inconsistencies between parenting and domestic violence orders. This application can be done by the aggrieved, the respondent, applicant, or a named person (e.g. relative or associate named on the order).
Alternatively, you may apply to the Family Court if, in your circumstance, the Family Court Orders prevails over the protection order. The court must specify the extent to which the order provides for the child to spend time with a person and note that the order is inconsistent with an existing family violence order.
You will need to complete a Form DV4 Application to vary a domestic violence order. This will need to be filed with the court. We can assist you with this process and answer any queries you have.
Tough times never last, but tough people do.
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Reach an agreement It can be more cost and time effective to reach an agreement with the other parent as to a more appropriate changeover location whilst the protection order is in place, which complies with both sets of orders. It’s not unusual for a parenting order to contain a paragraph which states something to the effect of
“the changeover location is to be as agreed between the parties, failing agreement the child’s primary school”. These types of orders are capable of being complied with even where one parent is prohibited from attending the school of the child, as an alternative location can be used for changeovers where both parties consent.
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06
Under what circumstances can a Parenting Order be suspended?
If final Parenting Orders have been made in the courts, and an incident has occurred which renders those orders inappropriate, it may be necessary to file an application for both a Protection Order and updated parenting orders. When would this be considered necessary? An example which commonly comes across our desks is an incident of violence occurring at changeover for the child. A client recently attended changeover and, during a heated discussion regarding the child, the father of the child tried to hit the mother of the child but instead hit the door behind the mother. This was all in the presence of the child.
seeking a temporary Protection Order in the interim, suspending the current Parenting Order. A Magistrate can vary, discharge or suspend a family law order where the court is provided with material that was not provided to the family court when the parenting order was made. What this means practically is that, if there is new relevant information which came to light after the Parenting Orders were made and which the family courts have not yet considered, the Magistrate can suspend the current Parenting Orders.
In the circumstances, it was most appropriate for the mother to file an application for a Protection Order,
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07
What do I do once a parenting order has been suspended?
Once the current Parenting Orders have been suspended, an urgent initiating application should be brought in the Federal Circuit Court for the material regarding the domestic violence incident to be considered by a judge. This application provides evidence there has been a significant change in circumstances, which allows the applicant to seek new Parenting Orders after final parenting orders have been made. This should also be your next step if you are defending the application for a Protection Order and your Parenting Orders have been suspended. It is very likely in those circumstances that your contact with the child will have been limited substantially. Accordingly, it may be appropriate to seek an abridgement of time which would allow your application to be heard as soon as possible.
IMPORTANT: This information is based upon circumstances which have arisen for particular clients of our firm. This article should not be relied upon in deciding whether it is appropriate for you to make an application to the court. Rather, you should seek legal advice and have both your domestic violence orders and parenting orders considered by a legal professional before taking any further steps. Each person’s circumstances are unique and the correct course of action for one client may be completely inappropriate for another.
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