for by grandparents or foster parents or other relatives. The law deals with this problem by allowing courts to make orders transferring the legal responsibilities of parenthood to somebody else, or changing them in various ways. These are parenting orders and as such, the court will make whatever order appears to be in the child’s best interests, having regard to the evidence that has been put before it. Each parent has parental responsibility for their child unless a court makes a parenting order or other decision transferring parental responsibility, or some part of it, to another person (refer to s 61C(3)). The law’s changing terminology In years gone by, the court frequently made orders giving one parent ‘custody’ and the other parent ‘access’. In 1996 these terms were dropped from the Family Law Act. ‘Custody’ gave one parent greater rights over the child than ‘access’ gave to the other parent. Parliament wished to reinforce the idea that both parents continued to be important as parents and not merely as visitors or playmates, after separation. So the law was changed. Instead of ‘custody orders’ the court made a ‘residence order’ in favour of the person with whom the child would mainly live, and a ‘contact order’ in favour of the other parent. The law was also changed at that time so that the ‘residence parent’ had no greater decision-making powers than the ‘contact parent’. As a result, each parent has ‘parental responsibility’ (formerly ‘guardianship’), and there is no legal connection between decision-making and arrangements for the children to live with or spend time with parents. In 2006, with the passage of the Family Law Amendment (Shared Parental Responsibility) Act 2006, Parliament took the view that it is better to avoid all language that might suggest that one parent was the winner and the other the loser, or that one parent was more important than the other. It was therefore decided to stop calling orders ‘residence’ or ‘contact’. Instead, the Act now simply says that the family courts can make orders dealing with various topics, including with whom the child should live and with whom the child should spend time or communicate – resulting in ‘live with’ orders, ‘spend time with’ orders and ‘communicate with’ orders.
By contrast, the family law system’s role is to assist in resolving disputes brought to it by family members. The family law system has no investigative capacity equivalent to the role of the protection departments of the states and territories. The family law system and the child protection system Although the family law system and the child protection system are different, in some circumstances they will both be involved in a child’s life. For example, a child who is involved in a in family law proceedings may have also been the subject of investigation or court proceedings under the child protection system. It is necessary for the law to deal with the problem that each system might reach a different conclusion. For example on the evidence before it, a family court might decide it is best for a child to live with a particular person. The child protection department may have reason to believe that the person is a danger to the child. Fortunately, the Family Law Act provides an answer to this problem. The Act provides, in effect, that the protection system trumps the family law system (s 69ZK). An order made by a family court cannot override the operation of the child protection system. Even though the family court might have made an order requiring a child to live with a particular parent, the child protection department could still intervene. If the children’s court so ordered, the child could be removed from that parent and placed elsewhere, such as foster care. Appendix 2 Obtaining consent orders Parents can obtain consent orders from the Family Court of Australia or the Family Court of Western Australia by using that Court's Consent Orders kit. While there is no need to attend court, there is a fee for such applications. Legal assistance may be obtained in completing the form and formulating the orders for the court to make.
Interim orders Court orders that apply for a limited period – typically, until the court has the opportunity to make final orders after a full hearing. Interim orders are often made in situations of urgency, and the court will often lack detailed evidence. ‘Live with’ order A court order providing that a child should live with a particular person. Previously known as a ‘residence’ order (pre-2006), or ‘custody’ order Location order A court order authorising public agencies to take steps to locate a child. Magistrates court Refers to the Magistrates courts of Queensland, Victoria, South Australia, Western Australia, Tasmania, the Australian Capital Territory and Northern Territory. The equivalent court in New South Wales is the Local court. Mediation A process in which a neutral third party helps parties resolve a dispute. Also described as ‘family dispute resolution’. Parent A biological or adoptive parent. Where a child is born as a result of an artificial conception procedure, then the birth mother, and her partner if she has one, is generally considered to be a parent. In the Family Law Act ‘parent’ does not include a person who merely acts in the role of a parent (in loco parentis), even if that person is treated as a parent by the community with which the person identifies. Parental responsibility A term used to to the responsibilities and powers parents have in relation to their children. Formerly known as ‘guardianship’. Parenting plan A written agreement between parents relating to the care of children, which has certain legal consequences. Parenting A court order dealing with the care of children, including matters such as parental responsibility for children, who the children will live with and who the children will spend time with. Presumption of shared parental responsibility A presumption applied by a court that it is in the best interests of the child that their parents should have equal shared parental responsibility. The presumption can be rebutted by evidence that it would