The Law Handbook 2024

268 Section 4: Relationships, families and young people Magistrates’ Court. The Magistrates’ Court can itself decide to transfer the proceedings to the FCFCOA despite the wishes of the parties. Before doing so, the Magistrates’ Court may make any ‘holding’ orders as it considers necessary. Either or both parents of the child, the child, grandparent or any other person concerned in the care, welfare or development of the child may institute proceedings. Parenting orders To obtain orders A person must file and serve the following: • application for parenting orders; • affidavit in support; • Notice of child abuse, family violence or risk; and • Genuine Steps Certificate (Family law). These documents can be found on the FCFCOA website. Proceedings are then filed and served, preferably by a process server. Variation of parenting orders A person can go to the court and ask that a parenting order be discharged, varied, suspended or revived. Cessation of parenting orders A parenting order stops when a child turns 18, marries, enters a de facto relationship or is adopted. Effect of death on residence orders If a parent who has a residence order for a child dies and there is a dispute in relation to where or with whom that child should live or spend time, the other parent is only entitled to residence if the court so orders upon application. The surviving parent can apply to the court, as can any other person who has an interest in the welfare of the child. Warrants and recovery orders Once a parenting order is made, each party must comply with that order. The court may issue a warrant for the arrest of a person who contravenes the order and have them brought before the court to be dealt with. The court may also make a ‘recovery order’ which authorises the police to recover a child and if necessary, can do so by force, stop and search any vehicle, vessel or aircraft and enter and search any premises or place for the purpose of finding a child. Order for information The courtmay order that information about the child’s whereabouts be provided by any Commonwealth department such as Services Australia (Centrelink), or by any other person who may have access to such information. Interfering with a child subject to an order No one should interfere with a parenting order made concerning a child without seeking legal advice regarding the consequences for doing so. Child and spousal maintenance Childbirth maintenance If the parents were not married when their child was born, the mother can apply for an order that the child’s father pay child-birth expenses (s 67B FL Act ); this application can be made to the FCFCOA or to the Magistrates’ Court. An application must be made within 12 months after the birth (or later with the court’s permission) (s 67G FL Act ). Expenses are calculated after rebates have been received from private health insurance and Medicare. The courts cannot take into account any income received by the mother if it is a means-tested allowance or a benefit from Centrelink (s 67C(3) FL Act ). Spousal maintenance Spousal maintenance is financial support paid by a person to a former husband or wife or de facto partner. An application for spousal maintenance must be made within 12 months of the divorce order taking effect or within two years after the end of a de facto relationship. Spousal maintenance can be in the form of periodic payments or a lump sum payment. For de facto parties, both the time limit