How does mediation work with parenting orders?

In relation to obtaining a good outcome in mediation this is a very inexact science, but there are some factors which can help with trying to achieve the objectives of mediation. Mainting an openess of mind, looking for creative solutions, having a clear understanding of your own objectives with the mediation process and being willing to communicate openly about your wishes are all recognised as being precursors to mediations achieving their desired outcomes. There is a good article about this here: which you may wish to read.

The court process demands that parties attempt to reach a consensual agreement either through family counselling, establishing ‘consent orders’ or where a parenting plan is approved by a solicitor and registered with a court. However, if all agreement breaks down, then the court can make what are called ‘parenting orders’ which carry the full force of the law – if they are not complied with the penalties can include large fines and in extreme cases imprisonment. A parenting order deals with the custody issues and the court considers the applications of the parties based on the welfare of the children and the concept of equal shared parental responsibility.


Parents responsibilities

Every parent has parental responsibility for a child regardless of whether or not the parents are married.

* This responsibility continues to exist despite changes in the nature of the relationship of the child’s parents.
* Parental responsibility survives separation, divorce and re-marriage.
* There are some exceptions, including for instance where there is a court order to the contrary or if paternity is in dispute.

Paternity: To establish a particular man is father of a child.

The issue of paternity often arises when the mother seeks maintenance for the child, or where a father seeks contact with the child.

* Paternity can be established in several ways including:
o Father’s name on the birth certificate
o Through acknowledgment
o A court finding
* The court can order a parentage testing procedure, which can include a blood or genetic test.
* Failure to take the test can result in the court drawing such inferences as appear just.
* Once paternity has been proved the mother can claim child support from the father of her child and the father can approach the court for contact.

Residence, contact and specific issues orders

* A residence order deals with the question of where the child is to live.
* A contact order deals with the contact between a child and another person, e.g. a parent or grandparent. This includes ongoing education, medical needs or the long term care of the child.
* A specific issue order deals with other aspects of parental responsibility to a child, that is responsibility for the day to day care of a child, or the long term care of a child. This includes ongoing education or medical needs.
* A child maintenance order deals with the arrangements for the financial support of a child. See the Child Support section of this website.

Informal agreements

If the parents agree on the future arrangements for a child’s residence, contact and specific issues as to parenting, the arrangements can be informal between the parents or formalised via a court order that both parents can seek by consent.
What the court considers

Where the parents of a child are not able to agree it is left to the court to determine.

In making a decision the court will take into account any factor that has a bearing on a child’s welfare, care and development including:

* The nature of the child’s relationship with each parent.
* The capacity of each parent to provide for the needs of the child including emotional and intellectual needs.
* The likely effect on the child of changes in the child’s circumstances.
* The need to protect the child from physical or psychological harm.
* Any family violence involving the child or a member of the child’s family.
* The child’s maturity, sex and background including any need to maintain a connection with a lifestyle or culture.
* If the child is of a sufficient maturity, the child’s wishes will be taken into account.

If it is in the best interests of a child, the Court can make an order directing a person to attend a post-separation parenting program.

Overseas travel

A child cannot be taken overseas without a court order or the written consent of the other parent or guardian.

* If there is a threat a child will be removed from Australia, an application can be made to the court seeking an order to prevent this.

Breach of parenting orders

There can be serious sanctions imposed by a court for a breach of a parenting order. It is recommended you seek legal advice regarding your situation.

Contravention of orders:

* If a person has intentionally failed to comply with an order.
* A person made no reasonable attempt to comply with an order.
* A person intentionally prevented compliance with an order by a person who is bound by it.
* A person aided or abetted a contravention of the order by a person who is bound by it.

If the court finds that a person has a reasonable excuse for contravening an order then they will be presumed not to have contravened the order.

* What is considered to be a reasonable excuse is a matter for the court and is only partly set out in the legislation.

Powers of the court

Amendments to the Family Law Act 1975 set up a parenting compliance regime. This introduced various orders the court can apply to contravention of primary orders relating to children. The powers of the court include:

* Directing a person to attend assessment to determine suitability for enrolment in a program.
* Once assessed a person can be directed to attend a program.
* Further parenting orders can be made to compensate for contact or residence that did not take place because of the original breach.
* Make another order varying the originally contravened order.
* The matter can be adjourned to allow for one or more parties to apply for the original order to be discharged, varied or suspended.

For serious disregard of obligations

* Community service orders
* An order requiring the person to enter into a bond
* Fines
* Term of imprisonment – extreme cases


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