Parental responsibility and spending time
Under section 266, a person who has parental responsibility and is responsible for the day-to-day or long-term care, welfare, and development of a child is regarded as having rights regarding parenting arrangements. Similarly, persons with whom a child spends time or communicates under a parenting order are recognized as having a right to spend time with the child.
The requirement for counselling
Generally, section 65F requires parties to attend family counselling before a court will make a parenting order. However, the court can bypass this requirement if there is an urgent need or special circumstances, such as family violence, which make counselling inappropriate or impracticable.
Limitations on parenting orders
The court’s ability to make parenting orders is limited by the age and status of the child. Under section 65H, a parenting order cannot be made for, and ceases to be in force for, any child who is 18 or over, married, or in a de facto relationship.
The definition gap
Because the legislation does not provide a concrete list of traits or actions that render a parent “unfit,” there is significant uncertainty for clients. This lack of a statutory definition means that outcomes depend on how the court weighs individual risks and the specific needs of the child in each matter.
Questions to consider
- Is there a history of family violence that would make attending mandatory counselling under section 65F unsafe or inappropriate?
- Who is currently exercising the day-to-day care and long-term welfare responsibilities described in section 266?
- Is the child approaching 18 or entering a de facto relationship, which would terminate the court’s power to make parenting orders under section 65H?
This information is general in nature and does not constitute legal
advice. For advice specific to your situation, contact JB Solicitors.