Joint Residence Template
Statement Of Legislative Intent
legislation as amended
replaces and supersedes previous case and statutory law regarding joint
residence to the extent that it conflicts with or is inconsistent with the
joint residence presumption established in paragraph D below.
Public Policy Statement
parliament of Australia in recognizing the fundamental right of every child to experience the love, guidance and companionship of both parents
in an every day setting after their separation or divorce, declares that it is
the public policy of the Commonwealth to
the time and involvement each parent is
willing and able to contribute in raising their children
after the parents have separated or dissolved their marriage and to encourage
parents to share the rights, duties and responsibilities of child rearing to
affect this policy.
In disputes involving the residence of a minor child, the court shall
award residence orders according to the best interests of the child in the
following order of preference:
both parents jointly (pursuant to the rebuttable presumption of joint residence
in paragraph D below).
In making an award to either
parent, the court must consider among other factors which parent is more likely
to maximize the time and involvement each parent is willing and able to
contribute in raising their child and may not prefer a parent because of the
parent’s gender or race.
any other person deemed by the court to be suitable and able to provide adequate
and stable environment.
Before the Court makes a residence order to a person or persons other
than a parent without the consent of the parents, it should make a finding that
an award of residence to a parent would be detrimental to the child and that an
award to a non–parent
is required to serve the best interests of the child.
Allegations, that a residence order in favour of a parent would be
detrimental to the child, other than a statement of that ultimate fact, shall
not appear in the pleadings.
There is a rebuttable
presumption that joint
residence is in the best interests of the child.
However, the parents may agree
to the awarding of sole residence to one parent.
The presumption in favour of joint residence may be rebutted by a showing that
it is not in the best interests of the child after consideration of clear and
convincing evidence with respect to all relevant factors in section 68F(2).
(2) The burden of proof that a joint residence order would not be
in a child’s best interest shall be upon the parent requesting sole day to day
For the purposes of this part, joint residence means an order investing
both day to day and long term parental responsibility in each parent, and
providing that residence of the child is shared in such a way as to maximize the
time and involvement each parent is willing and able to contribute in raising
Maximizing is achieved by
ensuring that a parent is not denied the ability to spend as much time as that
parent is willing and able to spend, and does not have his or her requested
time reduced when it would result in increasing the amount of time the other
parent spends to exceed 50%.
joint residence order obligates the parties to exchange information concerning
the health, education and welfare of the minor child and unless allocated or
apportioned, the parents shall confer with one
another in the exercise of decision-making
rights, responsibilities and authority.
making an award, the court in its discretion, may require the submission of a plan for the implementation of the parenting order.
court may order mediation in order to assist the parties in formulating or modifying
such a plan.
parent who asserts they cannot cooperate with the other parent is required to
present a Cooperative Plan setting out the acts that parent will undertake to
reduce conflict and increase cooperation to overcome any alleged difficulties
A parent who fails to present a Cooperative Plan, or fails to engage in
the acts set forth in that plan or who engages in any acts that directly or
indirectly enhance hostility and constitute a failure to cooperate, is deemed to
be acting in contravention of the best interests of the child.
the court declines to award a joint residence order, the court shall state in its decision the specific findings of fact upon which the order for residence, other than joint residence, is based.
objection by a parent to a joint residence order is not a sufficient basis for a finding that a joint residence order is not in the best interests of a child, nor is a finding that the parents are
hostile to each other. That there is conflict between parents is of itself not a sufficient basis for assuming that the child’s best interest will not be served.
statement that a joint residence order is not in the best interests of a child shall not be sufficient to meet the requirements of this part.
A joint residence order may be modified or terminated upon the petition of one or both parents or on the court’s own motion if it is shown that the best interests of the child require
modification or termination of the order.
an application for modification, the court shall consider evidence of substantial or repeated failure of a parent to adhere to the plan for implementing the joint residence order.
The court shall
state in its decision the reason for modification or termination of the joint residence order if either parent opposes the modification or termination order.
it is shown to be detrimental to the best interests of the child, the child
shall have to the greatest degree practical, equal contact to both parents
during the time that the court considers the award of residence.
(K) Ex Parte Orders
The court may enter ex parte a
temporary order providing for the residence of a child if:
(a) The party requesting an
order is present in court and presents an affidavit alleging that the child is
in immediate danger; and
(b) The court finds, based on
the facts presented in the party’s testimony and affidavit and in the testimony
of the other party, if the other party is present, that the child is in
(c) The party requesting an
order under this subsection shall provide the court with telephone numbers where
the party can be reached at any time during the day and a contact address.
(d) A copy of the order and the
supporting affidavit must be served on the other party in the manner of service
of a summons.
(L) False Accusations
of a malicious false report of child abuse or family violence is admissible in a
suit between the involved parties regarding the residence of, or contact with a child. A
malicious false report of child abuse or family violence made before or during a
suit affecting the parent-child relationship shall be grounds for the court to
modify the parent-child relationship to restrict further contact to the child by
the false accuser.
a) If a court determines,
based on the evidence presented to it, that an accusation of child abuse or
family violence made during a residence or contact proceeding is false and the
person making the accusation knew it to be false at the time the accusation was
made, the court may impose reasonable money sanctions, not to exceed all costs
incurred by the party accused as a direct result of defending the accusation,
and reasonable attorney's fees incurred in recovering the sanctions, against the
person making the accusation. For the purposes of this part, "person" includes
a witness, a party, or a party's attorney.
(b) On motion by any person
requesting sanctions under this part, the court shall issue its order to show
cause why the requested sanctions should not be imposed. The order to show
cause shall be served on the person against whom the sanctions are sought and a
hearing thereon shall be scheduled by the court to be conducted at least 15 days
after the order is served.
(c) The remedy provided by
this part is in addition to any other remedy provided by law.
any other provision of law, unless the court orders otherwise, access to records and information pertaining to a minor child, including but not limited to medical, dental, law enforcement and school
records shall not be denied to a parent who does not have day to day responsibilities for the child.
Change of Address
In the absence of
an order to the contrary, a parent in receipt of a residence order shall notify the other parent if he or she plans to change
the residence of the child for more than thirty (30) days, unless there is written consent to the change.
To the extent possible, notice must be served personally or given by certified
mail, not less than forty–five (45) days before the proposed change in residence. Proof of service must be filed with the Court that issued the residence order. The purpose of the notice is to allow
the parents to seek modification of the residence order.
Failure to give notice without good cause may be a factor in determining whether
relocation was done in good faith.