Guideline 4 - Parenting orders

Guideline 4.1 - assistance for parenting orders

Vulnerable client

Legal Aid Queensland (LAQ) considers that a vulnerable client in a family law matter is an applicant who:

• is involved in a family law matter where allegations of domestic and family violence have been made*,
• has had involvement with a child welfare authority,
• is aged under 25 years old,
• is aged over 65 years old,
• is Aboriginal and/or Torres Strait Islander,
• lives in a remote location**,
• is homeless***,
• requires the services of an interpreter,
• has a disability or mental illness, or
• has been identified through the LAQ Dispute Resolution process as a person who has a limited ability to negotiate and represent themselves effectively in proceedings.

* Funding in such circumstances would extend to both parties in the matter (subject to other guideline requirements)

** LAQ uses the Australia Bureau of Statistics definition of remote or very remote Australia as defined through the postcodes listed in the 2017 Postcode to 2016 Remoteness Area report.

*** LAQ uses the Australian Bureau of Statistics (ABS) statistical definition of homelessness.

Dispute about a substantial issue

In parenting matters which are proceeding to court, LAQ will consider funding the applicant for aid to court where there is dispute about a substantial issue concerning one or more of the following:

• the safety of the child and their protection from family violence*, abuse, neglect or other harm*, or
• the denial of the child's right to have a safe and beneficial relationship with their parents and other significant people, or
• the denial of the child's right to enjoy their Aboriginal and/or Torres Strait Islander culture.

Even if it is determined that there is a dispute about a substantial issue, the applicant must still meet the means test, other relevant guidelines and merits tests.

* For the purposes of this guideline, LAQ defines family violence in accordance with s4AB of the Family Law Act 1975.

Disputes concerning the safety of the child and their protection from family violence, abuse, neglect or other harm

For the purposes of this guideline, LAQ may consider that there is a parenting dispute about a substantial issue concerning the safety of the child from family violence, abuse, neglect or other harm in the following circumstances:

• The applicant for aid is seeking to initiate or respond to proceedings to prevent the child spending time with a person who they allege exposes the child to family violence, abuse, neglect or other harm where formal reports have been made to and been investigated by relevant authorities as set out below.
  • The applicant for aid is seeking to initiate or respond to proceedings to prevent the child spending time with a person who has been convicted of, or is currently charged with:
    • sexual offences relating to a child, or
    • a criminal offence relating to the child, or
    • serious criminal offences where the other parent was the victim.
  • The applicant for aid is seeking to initiate or respond to proceedings to prevent the child spending time with a person who has been the subject of a report/s of alleged family violence, abuse, neglect or other harm that has been substantiated. The applicant for aid has also been identified by a child welfare authority as a person willing and able to act protectively and an order is required to prevent further child welfare involvement.
• There is a risk of serious developmental, psychological or emotional harm as the child has been in the primary care of the applicant for aid for a significant period relative to the child’s age and:
  • the other party has removed the child from their care, and it does not appear to be in the child’s best interests, or
  • the other party has initiated proceedings and if successful will result in a change to where the child lives and it does not appear to be in the child’s best interests.
• There is a risk of serious developmental, psychological or emotional harm due to concerns about the capacity of a person who has or is proposed to have parental responsibility for the child to provide for the child's developmental, psychological, emotional, and cultural needs.
• There is an immediate risk to the child’s safety and / or risk of serious developmental, psychological or emotional harm as the other party has removed a baby that is still being breastfed and it does not appear to be in the child’s best interests.
• There is an immediate risk to the child’s safety and / or risk of serious developmental, psychological or emotional harm as the other party has made threats or has taken actions to remove a child from Australia and the other party has:
  • a visa, passport or citizenship in another country which would allow them to live in another country, and
  • the child’s passport in their possession, and
  • the financial means available to them to purchase an airfare ticket or travel by other means, and
  • no ties to Australia.
• There is an immediate risk to the child’s safety and / or risk of serious developmental, psychological or emotional harm as the other party has made threats to remove a child to a remote geographical region of Australia and it does not appear to be in the child’s best interests.
• There is an immediate risk to the child’s safety and / or risk of serious developmental, psychological or emotional harm as the other party is denying the child access to essential medical treatment.
• The child lives with the applicant for aid who is not the child’s parent and they do not have the necessary parental responsibility to ensure the safety of the child from family violence, abuse, neglect or other harm, such as:
  • preventing an immediate risk of the child being removed from their care, or
  • an inability to obtain medical treatment that is essential, or
  • an inability to enrol the child into school.
• The applicant for aid has primary care of the child and is wishing to relocate to protect the child from family violence, abuse, neglect or other harm.
• The applicant for aid has a protection order (temporary or final) in place and they are currently denying the respondent to the protection order time with the child due to domestic and family violence concerns, and:
  • the child is named as a protected person on the protection order, and
  • they are responding to an application that if successful will mean the child spending unsupervised time or living with the respondent to the protection order.
• The applicant for aid has left their place of residence due to domestic and family violence and is currently denying the other party time with the child due to the domestic and family violence concerns, and:
  • an application for a protection order has been filed and the application seeks the child to be named on the order, or
  • evidence can be provided to substantiate the child's safety is at risk and protection from family violence is required, and
  • they are responding to an application that if successful will mean the child spending unsupervised time or living with the respondent to the protection order.

For the purposes of this guideline, LAQ may consider that there is not a parenting dispute about a substantial issue concerning the safety of the child from family violence, abuse, neglect or other harm in the following examples:

• The applicant for aid has not made allegations of family violence, abuse, neglect or other harm.
• The applicant for aid has made allegations of family violence, abuse, neglect or other harm and no report has been made to either the police or child welfare authority.
• A child welfare authority has investigated a report/s of alleged harm and has:
  • found the report/s to be unsubstantiated, or
  • found the report/s to be substantiated and are protecting the child’s safety or welfare and have not provided their support for the applicant for aid to obtain a parenting order in the Family Law Courts.
• The other party has made threats to remove the child from Australia but does not have access to the child’s passport or ability to obtain a passport without consent.
• There is no immediate risk of the removal of the child to a remote geographical region of Australia as the other party has no historical or cultural ties within a remote community.
• The applicant for aid with whom the child lives is wishing to relocate however the reason for relocation is not to protect the child from family violence, abuse, neglect or other harm.
• The applicant for aid is seeking the child to be returned to their care when a shared care arrangement has broken down and there is no risk of family violence, abuse, neglect or other harm.

Disputes concerning the denial of a safe and beneficial relationship between a parent and the child

For the purposes of this guideline, LAQ may consider there is a dispute about a substantial issue concerning the denial of a safe and beneficial relationship between a parent and the child in the following circumstances:

• The parent applying for legal aid has been denied any time or communication with the child, and
  • the parent has made all reasonable attempts to secure time and communication, or
  • the parent cannot attempt to secure time and communication due to the conditions of a current protection order, and
  • there appears to be no good reason for the parent to be denied any time and communication with the child and it appears to be in the child's best interests to spend time with their parent.
• The parent applying for legal aid is being offered time with, or spending time / communicating with the child under overly restrictive conditions and there appears to be no good reason for restrictions and the restrictions do not appear to be in the child's best interests. Examples of restrictive conditions can include:
  • time during the day only
  • limited to specific time/location/activity
  • supervised time only
  • time by telephone only
  • holiday time only where there is no previous agreement for this arrangement.
  • on days or at times where the applicant cannot practically attend (work hours etc.)
• The parent applying for legal aid is being offered time with, or spending time / communicating with the child which is insufficient to allow the parent to have a safe and beneficial relationship with the child.
• The other party who has primary care of the child is seeking to relocate to another country, state or a significant distance within the same state which will, if successful, prevent a safe and beneficial relationship between the parent applying for legal aid and the child.

For the purposes of this guideline, LAQ does not consider there is a dispute about a substantial issue concerning the denial of a safe and beneficial relationship between a parent and the child in the following examples:

• The applicant for aid is not a parent of a child (i.e. step parents, kinship carers, former foster parents, grandparents, siblings, extended family etc.). See guideline 4.3 assistance to parties who are not parents.
• The child lives with the other party and is located a significant distance away from the applicant for aid. The applicant for aid is seeking more time with the child however due to the distance, the time the applicant currently receives is sufficient to allow the child and the parent to have a safe and beneficial relationship.
• The applicant for aid is subject to an order that prevents any contact with the child.
• The parties are in agreement as to where the child should live and how much time the child should spend with the other parent and are seeking orders to formalise these arrangements.
• The proposals from the parties for parenting arrangements provide for the child to have a safe and beneficial relationship with both parents even though the amount of time is not agreed.
• Both parents are currently spending a sufficient amount of time with the child to allow a safe and beneficial relationship to occur.
• The applicant for aid who is being denied time and communication with the child is incarcerated.
• The child has made a decision that they wish to have less time with the applicant for aid which may curtail a safe and beneficial relationship with the child however due to their age and maturity they have sufficient capacity to make such a decision and it is therefore likely that a court decision would reflect their views. Relevant considerations may include:
  • The age of the child
  • Whether the child has a disability
  • Where the child currently lives
  • What steps have been taken to establish a safe and beneficial relationship with the child and evidence of this (court orders, family dispute resolution certificate, diary notes, letters, meetings with schools, phone and contact details provided, etc.)
  • Whether the child has the ability to contact the applicant for aid in person or by any other means (face to face, phone, social media, email, video link, mail etc. and those details are known to the child)
  • Evidence of views expressed by the child through another party or person (sworn affidavit)
  • Evidence of the child's behaviour which supports their expressed views
  • Previous contact with the child
  • Whether there are other relevant proceedings (applicant or child)

• The applicant for aid has a safe and beneficial relationship with the child and the dispute relates to how much time the applicant for aid spends with the child during school holidays.
• The issue relates to matters such as:
  • who pays for:
    • school fees
    • uniforms
    • books
    • travel
    • extracurricular activities
    • clothing
    • hair cuts
    • food
  • whether a child attends a place of worship
  • what clothes and toys are kept with each party and who washes them
  • where the changeover is to occur
  • what time the child goes to bed
  • what the child eats
  • what activities the child does
  • routine vaccinations/immunisations* (*as published by the Australian Government, Department of Health and Ageing in the National Immunisation Program Schedule)

Disputes concerning the denial of the child's right to enjoy their Aboriginal and/or Torres Strait Islander culture

For the purposes of this guideline, LAQ may consider there is a dispute about a substantial issue concerning the denial of the child's right to enjoy their Aboriginal and/or Torres Strait Islander culture in the following circumstances:

• The child lives with a non-Indigenous parent, relative or other person and is being denied:
  • Their right to recognise and connect with their Aboriginal and/or Torres Strait Islander identity, community culture, and language.
  • Their right to attend significant events such as NAIDOC week and National Aboriginal and Torres Strait Islander Children's Day.
  • Their right to connect with their Aboriginal and/or Torres Strait Islander family during special occasions such as birthdays, Mother's Day, Father's Day, Grandparents' Day or sorry business (funerals).
•  The child lives with a parent, relative or other person who is seeking to relocate with the child out of community and there are no cultural plans in place to ensure the child's right to enjoy their Aboriginal and/or Torres Strait Islander culture is maintained.

Interpretation of safe and beneficial relationship between a parent and a child

A safe relationship between a parent and a child is one where the parenting arrangements promote the safety (including the safety from family violence, abuse, neglect, or other harm) of the child and each person who has care of the child (whether or not a person has parental responsibility of a child).

A beneficial relationship is one which is important, significant, and valuable to the child. What must be considered is the benefit to the child of being able to have a relationship with the child's parents, and other people who are significant to the child, where it is safe to do so. A beneficial relationship is about the quality of time rather than the amount of time.

Guideline 4.2 - assistance for applications to discharge or vary parenting arrangements

Vulnerable client

Same as guideline 4.1

Dispute about a substantial issue

Same as guideline 4.1

There has been a significant change in circumstances since the court order was made

Legal aid is not usually available for applications to discharge or vary parenting arrangements within two years of final orders being made (whether by court order or by consent).

LAQ will consider funding fresh proceedings relating to children who are the subject of existing orders only in certain circumstances. Section 65DAAA of the Family Law Act sets out when a final parenting order can be reconsidered by a court and codifies the common law rule in Rice and Asplund (1978) 6 Fam LR 570.

LAQ will consider funding an application to discharge or vary parenting arrangements when a final order has been made where:

• there has been a significant change of circumstances since the final parenting order was made, and
• LAQ is satisfied that it is in the best interests of the child for the final parenting order to be reconsidered.

These applications will be considered on a case by case basis and having regard to the following:

• The existing orders, reasons for judgment, evidence and/or circumstances of the family at the time of the making of the orders (e.g. transcript of proceedings, exhibits, affidavit material)
• The new orders that the applicant seeks and the evidence which they seek to place before the court demonstrate a significant change in circumstances and warrants the discharge or variation of an order.
• Whether reconsideration of the final parenting order is in the best interests of the child.
• Whether the evidence of significant change in circumstances addresses the concerns and findings held by the court or experts at the time of the making of the existing orders.
• Whether the evidence about change in circumstances was available at the time of the making of the existing orders, and if so, why the evidence was not presented to the court.
• The change is more significant than merely what has occurred due to the passage of time.
• There is a real likelihood that as a result of the change in circumstances there would be a significant change to the existing orders and not just minor adjustments to parenting arrangements.
• Whether the applicant caused the change in circumstances.

Examples of changed circumstances below are not an exhaustive list and all applications will be considered by LAQ on a case by case basis:

• Recovery from prior mental illness by a parent who has limited or no time with the child/ren.
• Stabilising of the life of a parent who has limited or no time with the child/ren.
• Failure of a party to disclose an intention to take the children out of Australia, such an intention having been formed at the time of the original hearing.
• Evidence which highlights information that was not raised at the original hearing and the reasons for not doing so (e.g., domestic and family violence, abuse, neglect, other harm, medical issue or cultural issues). 

Guideline 4.3 - assistance to parties who are not parents

Vulnerable client

Same as guideline 4.1

Disputes about a substantial issue

Disputes concerning the protection of the child from family violence, abuse, neglect or other harm

Same as guideline 4.1

Disputes concerning the denial of a safe and beneficial relationship between a party who is not a parent and a child

For the purposes of this guideline, LAQ may consider there is a dispute about a substantial issue concerning the denial of a safe and beneficial relationship between a person who is not a parent and child in the following circumstances:

• An applicant for legal aid who is not a parent has been denied any time or communication with the child, and:
  • the party has made all reasonable attempts to secure time and communication, or
  • the party cannot attempt to secure time and communication due to the conditions of a current protection order, and
  • there appears to be no good reason for the party to be denied any time and communication with the child and it appears to be in the child's best interest to spend time with the applicant.
• An applicant for legal aid who is not a parent is being offered time with, or spending time / communication with the child under overly restrictive conditions and there appears to be no good reason for restrictions and it appears to not be in the child's best interests. Restrictive conditions include:
  • time which is supervised only
  • time by telephone only
  • time on days or at times where the applicant for legal aid cannot practically attend (work hours etc.).

For the purposes of this guideline, LAQ does not consider there is a dispute about a substantial issue concerning the denial of a safe and beneficial relationship between a person who is not a parent and a child when:

• An applicant for legal aid who is not a parent is spending time with or communicating with the child without overly restrictive conditions.

Disputes concerning the denial of the child's right to enjoy their Aboriginal and/or Torres Strait Islander culture

Same as guideline 4.1

The party is significant to the developmental, psychological, emotional, and cultural needs of the child

For the purposes of this guideline, LAQ considers a party who is not a parent to be significant to the developmental, psychological, emotional, and cultural needs of a child where:

• the child has previously lived in the primary care of that party, or
• the child has previously lived in the household of that party, or
• the child would have no contact with the maternal / paternal family if they did not have a relationship with the party
• the child is an Aboriginal and/or Torres Strait Islander child and the applicant for aid is a relative of that child in accordance with that child's Aboriginal and/or Torres Strait Islander culture (including but not limited to any kinship systems of either or both cultures).

LAQ considers it to be in the child's best interest

LAQ will take into account s60cc of the Family Law Act when considering the best interests of the child.

Last updated 25 March 2022