Berry Family Law Special Counsel Bernadette Johnston discusses the basics of Family Law Orders. Bernadette and Berry Family Law Partner James Turnbull will present on the topic, Family Law and Your School: An Overview, at the School Law Symposium on Risks, Duties and Liabilities on Wednesday, 5 June.
It is a common and sensible practise for schools to retain copies of court orders relevant to the children under their care – but having placed these orders on their file many educationalists don’t know what they mean let alone how such orders may alter their responsibilities for such children.
This article is the second in a series aimed at explaining family law issues as they impact schools. It covers the terminology used in the various types of orders which may be made in relation to children and have implications for the many professionals working within the school system. Read the previous article in this series here.
There are two main types of family law orders:
1. Family Violence Orders. These are primarily aimed at the personal protection of “affected family members” including children. They are made under state laws such as the Family Violence Protection Act 2008 in Victoria or the Crimes (Domestic and Personal Violence) Act 2007 in New South Wales. These orders are made by a local court (such as the Magistrates’ Court).
Family Violence orders are known by a variety of names such as “Intervention Orders” (IVO) or “Apprehended Domestic Violence Order” (ADVO).
Family Violence is defined widely and can include such things as direct acts of violence, witnessing acts of violence or comforting a family member after the commission of such violence.
Family violence orders are usually expressed in plain English and indicate what a Respondent may not do – for example “may not be within 200 metres of a place where the affected family member lives or goes to school”.
Such orders have an expiry date, which should be checked. They may be an “interim” order (which lasts until another court date) and may have been made on an urgent basis without the prior knowledge of the defendant (an “ex parte” order). Whether an order is interim, ex parte or final is irrelevant to the legality and enforceability of the order. The breach of such an order is a criminal offence.
2. Parenting Orders. These usually regulate the arrangements for children (where they live, who is responsible for them, who may spend time or communicate with them). Such orders are made under federal law (the Family Law Act). Such laws are administered by the Family or Federal Circuit Court.
There is also some overlap in the function of the state and federal courts. For example the Family or Federal Circuit Court sometimes make orders to stop certain actions (an “injunction”) which can include preventing a person from going near another person (including a child) or place (such as a school).
For many years, people understood concepts of “guardianship” and “custody” and knew what it meant when a parent had “access” to a child. This terminology is still used to describe a legal position of responsibility (a prisoner is still kept in “custody”, a person with a debilitating condition or is a minor may have a “guardian” appointed by a court) but these terms have not been used in the Family Law Act since amendments in 1996.
The most common orders relate to Parental Responsibility, where a child lives and spends time and otherspecific issues.
Parental Responsibility for a child remains joint unless there is an order to the contrary changing this situation. Therefore, you may accept information and permissions on such issues (eg – whether to administer medicine to a child, whether a child may attend religious instruction) from either parent or their nominee.
By contrast, the situation is different if an order confers SOLE parental responsibility. While this is relatively rare, care should be taken not to assume both parents have authority in health, educational and religious matters. Care must also be taken in providing information and reports in such situation, although a separate specific order covering the precise situation may assist you.
“Live with” orders are relatively clear. They will indicate that a child “lives with” either one parent all of the time or both parents according to a schedule. In the past, having only one “custodial” parent was usual, but the child “living” between two homes is now more common.
Such orders usually involve the regulation of arrangements between parents, but a grandparent, step parent or other interested person may sometimes be involved and this can be indicative of a complex family arrangement.
“Spending time” orders are similar to the old “access” orders. They regulate the times when the child is in the care of the non-resident parent or other person, eg a grandparent.
Specific Issues orders can cover matters such as whether the parents can both attend school functions or parent teacher interviews, whether school reports should be available to both parents, and which school a child may attend.
Hopefully this brief overview of the relevant terminology has been of assistance and subsequent articles will assist in clarifying the corresponding legal issues. Look out for the Legalwise Seminars conference on 5 June in which School Law will be discussed in detail and issues impacting schools explored in panel discussions.
Bernadette Johnston is Special Counsel at Berry Family Law and has been practising in the area of Family Law since 1989. Having a Dip Ed from the University of Melbourne has lead to a particular interest in high conflict parenting disputes which often impact school-aged children (such as relocation and parental alienation matters) and the issue of educationalists caught in the crossfire of Family Law matters. Bern is a member of the Law Counsel of Australia and the Law Institute of Victoria, where she is a member of the Family Law Executive Committee and Courts Practice Committees. Bern may be contacted at [email protected] or (03) 9321 3105.