When you separate, it is important to have an agreement in place, setting out arrangements for the children. Arrangements for the children can be formalised in 2 ways:
♦ Parenting plan
♦ Parenting order
A parenting plan is a private agreement which must be in writing, dated and signed by both parents. It can be changed at any time, provided that both parents agree. If you can’t agree, you will need to apply to the court for parenting orders in terms that you want. However, the court may be unwilling to make orders different from the parenting plan, particularly if the parenting plan has been in place for a long period of time, unless you can show your circumstances have changed and that it is in the best interests of the child/ren. A parenting plan is not legally enforceable as it is not a court order and it is strongly advised that you obtain legal advice before signing a parenting plan.
A parenting order is a document that also sets out parenting arrangements, however it is registered or filed in the family law courts and once approved by the court is stamped with the court seal and becomes a parenting order. A parenting order is enforceable by a court and if you have concerns about your spouse complying with parenting arrangements, it is adviseable to obtain a parenting order, rather than a parenting plan. Where agreement is reached about parenting orders, consent orders may be filed with the family law courts, which has the same effect as a parenting order but you do not need to go to court. Consent orders can be changed at any time if both parents agree. However, if you can not agree you will need to apply to the court to change the orders. This can be difficult as you need to show to the court that your circumstances have changed since the order was made and/or a reasonable period of time has elapsed since the order was made.
Prior to filing an application for parenting orders, the family law courts require parties to make a genuine attempt to resolve their differences, by participating in family dispute resolution. There are some exceptions to participating in dispute resolution, if there is violence or abuse or grounds of urgency. Hogan Stanton Lawyers can advise you as to whether you meet one of these exceptions or if you need to participate in family dispute resolution and provide you with information as to the recognised mediation services available to you. The recognised family dispute resolution practitioner is required to issue a certificate that you must attach to your application to the court, which states whether the matter was inappropriate for mediation, whether the parties participated in mediation or whether one of the parties refused to participate or did not make a genuine attempt to resolve the matter. It is important that you obtain legal advice in relation to the types of certificates that may be issued as there may be implications as to legal costs, depending on the certificate issued.
When making decisions about parenting arrangements, the court considers a number of different factors which are set out in the Family Law Act (Cth) 1975. The main concern is what is in the best interests of the child/ren. We strongly recommend you seek legal advice as to the factors the court considers when determining what is in the best interests of the child/ren.
The court will also apply a presumption, that parents should have equal shared parental responsbility for long term decisions, unless it is satisfied that it is not in the bests interests of the child/ren and/or there has been family violence or child abuse by one of the parents or risk of harm to the children.
If a court determines that equal shared parental responsibility applies, the court must consider whether the child/ren spending equal time with each parent is in the their best interests and is reasonably practicable.
If the court determines equal time is not appropriate, the court must consider whether the child/ren spending substantial and significant time with the parent they do not live with, is in their best interests and reasonably practicable. Substantial and significant time means the child/ren spending weekdays and weekend days with the parent they do not live with, as well as special days and occasions such as birthdays, Christmas, mother’s day and father’s day.
There are a number of other issues that you may need to consider and obtain legal advice in relation to, including the following:
♦ What happens until a court order is made?
♦ Can I get an urgent order?
♦ What about grandparents and other significant persons in a child/ren’s life?
♦ Do I need an independent children’s lawyer and/or a family report?
♦ Do I have to force my child to spend time with the other parent?
♦ What happens if I do not comply with a parenting order?
♦ What if there is danger of abuse or risk of harm?
♦ What are supervised visits?
♦ What happens if there is a protection order and a parenting order that are inconsistent?
♦ What if my spouse or another person has taken my child/ren from me?
♦ How can I prevent my child/ren being taken overseas?
♦ What can I do once my child/ren have been taken overseas?
♦ Can I move away with my child/ren, if I want to relocate?
Parenting arrangements can involve very complex issues and Hogan Stanton Lawyers can advise you from the very outset of your separation to ensure that you do not take any steps that may prejudice your matter should you proceed through the family law courts.