Parenting and Children
Agreeing on parenting arrangements can be the most stressful part of separation. As your family lawyer I will help arrange a Consent Order or Parenting Plan to support your child’s best interests.
As a parent, your child’s best interests are paramount. So when your relationship with your partner breaks down, it’s natural to feel concerned about future living arrangements for your children. As your family lawyer, I will be here to assist you to reach an agreement on constructive parenting arrangements that put your children’s wellbeing first. Whether you can work collaboratively with your former partner and can have an informal arrangement, or need something more formal such as a Parenting Plan or an enforceable Consent Order, I will offer expert guidance and practical support to guarantee you understand all rights and obligations relating to your children.
Informal agreements work when both parties are willing to act cooperatively. Unfortunately, sometimes parenting relationships following relationship breakdown are difficult. I have extensive experience appearing before the Family Court and Federal Circuit Court and am able to effectively advise, negotiate and advocate on your behalf.
Changing circumstances can mean that agreements that once worked well are no longer practical or appropriate. I will help you navigate through the challenging process of renegotiating arrangements due to changing circumstances.
I also offer support and advice to grandparents and other non-parents who can obtain Parenting Orders under the Family Law Act in appropriate circumstances.
The Family Law Act provides that each parent of a child under the age of 18 years has parental responsibility for making decisions for the child.
As your family lawyer, I can assist you with decisions concerning:
- Who your children will live with.
- When/where/how much time each child will spend with each parent and other significant family members including grandparents.
- Who will make major long-term decisions about the children, such as education, religion, cultural upbringing, living arrangements and healthcare.
- How and when each parent may contact the children.
- The impact of family violence on care arrangements.
- The consideration to be given to children’s wishes.
- What happens when a child is not returned.
- Whether you or your partner intend on relocating with or taking your children overseas.
The Family Law Act no longer refers to custody arrangements or access to children. The Courts are now required to consider making Orders about who children should live with and whether and how often they should spend time with other significant people. This does not only include parents. It can also include grandparents and other significant relationships.
There are no set rules when it comes to determining how much time each parent will spend with their children after separation.
The Family Law Act sets out a legislative process that the Courts must follow to determine parenting arrangements when parents and other significant people cannot agree.
The Act provides that when determining parenting arrangements, the Court must place the best interests of the child above all else.
The Act provides that the two primary considerations when determining the best interests of a child are:
- The benefit to the child of having a meaningful relationship with both parents, and
- The need to protect the children from physical or psychological harm.
The Court must also take into account a range of additional considerations when determining the best interests of a child, including:
- The child’s views and the weight to be placed on those views based on the child’s maturity and understanding of the situation.
- The extent to which the parents have met their parental obligations, such as spending time with and making decisions for the child in the past.
- Each parent’s practical ability to fulfil the child’s needs.
- The right of an Aboriginal and Torres Strait Islander child to experience their culture and the effect that a particular
- Parenting Order may have on that right.
- The impact of changed circumstances on other aspects of the child’s life.
- The impact that family violence involving the child or family members may have on the child.
By law, parents have responsibility for making decisions for children under the age of 18. The Courts can make Orders that change who has parental responsibility but whatever happens, ordinarily children cannot legally make decisions themselves until they are adults. So the age when children can decide is 18.
However, when deciding what parenting arrangements should be put in place, the Court must consider any views expressed by the child. When considering those views, the Court will place as much weight on those views as is appropriate having regard to the age, maturity and level of understanding of the child.
Parental responsibility means all of the duties, powers, responsibilities and authority which, by law, parents have in relation to children. The default position pursuant to the Family Law Act is that each parent of a child under the age of 18 years has parental responsibility for making decisions for the child.
Under the Act, parents do not have to agree. They can make decisions for children independently of each other. However, the Courts can make Orders that change who has parental responsibility for children and how parental responsibility is exercised. In some cases, the Courts will impose an obligation on parents to discuss major issues about the child and make an effort to reach agreement. In other cases, the Court may order that one parent has sole responsibility for making decisions for a child.
A Consent Order is an order made by a Court with the agreement of all parties. It is just as legally binding as an Order made by a Court at the end of a contested Hearing or Trial. It also has the added moral force that all parties agreed at the time it was made that the arrangement was in the child’s best interests. Courts often place additional weight on the fact that an Order was made by consent if one party later fails to comply with it, or applies to have it changed.
Both a Consent Order and a Parenting Plan can detail childcare arrangements. They can both outline where a child will live, the amount of time each parent will spend with the child, the degree of parental responsibility each parent has for the children and even the resolution process for future disputes.
A Consent Order is a binding Order made by a Court. Failure to comply with an Order can result in a penalty being imposed, including a fine, a bond or even a period of imprisonment. A Parenting Plan is not enforceable. It is simply a written agreement between parents about parenting arrangements.
Although not binding, Parenting Plans can still be very useful. If parents reach an agreement but also want some flexibility to change arrangements easily in the future, a Parenting Plan might be the ideal solution.
When a party to Orders fails to comply with an Order, there is no automatic enforcement process and no independent authority who will prosecute the failure to comply.
The onus rests on the other party, ie, the person complaining of the breach, to bring enforcement proceedings. In parenting matters, the enforcement application is known as a Contravention Application. The Applicant must establish that the Respondent failed to comply with an Order of the Court. If the Court is satisfied that an Order has not been complied with, the burden then shifts to the Respondent who may not be punished if they can show that they had a reasonable excuse for failing to comply. The Court will consider the matter objectively and will assume that the Order was proper and correct and should have been complied with.
A finding that a party has failed to comply with an Order of the Court without reasonable excuse may result in a penalty being imposed which could include a bond, fine, or period of imprisonment.
If there are no Orders in place, then neither party is under a legal obligation to cause children to spend time with the other parent. However, the Court will look at the conduct of parties prior to Orders being made when determining any subsequent proceedings. So a parent’s conduct, even when there are no Orders, can still be very important.
Children often resist doing many things due to a lack of maturity. Parents are responsible for making decisions for their children, and that sometimes includes compelling them to do things which they may say they do not want to do, but are in their best interests. Of course, there may be circumstances where children express a view about spending time with a parent which is based on their experiences of that parent and reflects a mature and appropriate position.
If there is a Court Order in place, then parties have a primary obligation to comply with the Order. Failure to comply can result in penalties being imposed unless the non-compliance is by agreement with the other parent or the non-complying party has a reasonable excuse. Ordinarily, a child expressing a wish not to spend time with the other parent would not be considered by the Court to be a reasonable excuse. In those circumstances, the parent with the care of the child should go back to the Court and seek to have the Order varied.
Cases that involve a parent wanting to move long distances with children are very difficult. These cases are referred to as Relocation Cases. Parents can have very valid and understandable reasons for wanting to relocate with their children, including returning to be closer to family support, for work reasons, and other relationship matters. Equally, the other parent understandably may not want their children moving a long distance away from them.
An Application to the Court for Parenting Orders can include an Order to restrain a parent from causing a child’s ordinary place of residence to be outside a particular region or area. Such an Order would prevent a move. Each case will be determined on its particular facts and the Orders the Court makes will ultimately be what it considers to be in the best interests of the child.
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