While the law no longer uses the term “custody”, many people still use this language when speaking about arrangements for children are separation.
We used to talk about “residence” and “contact” but changes to family law legislation in 2006 introduced new terminology. We now use the terms “live with” and “spend time and communicate with” in addition to things like “equal time” and “substantial and significant time”.
Despite changes to the words used, the most important principle when talking about decisions relating to children is “what is in the children’s best interests”.
All families are different and what is in the best interests of one child will not necessarily be in the best interests of another. If you are separating and trying to work out custody arrangements for your children it is essential that you seek specialist family law advice at an early stage.
Do we have to go to court to work out our custody arrangements?
No, court should always be a last resort. Many parents reach agreement about parenting arrangements without stepping foot in a court room.
If you are able to reach agreement about parenting arrangements with your former spouse it is important to seek expert family law advice about the different ways you can formalise your agreement.
Do we have to attend mediation before going to court about parenting arrangements?
Yes, in most cases it is a requirement that you attempt mediation with a registered family dispute resolution practitioner prior to applying to the court. You can arrange mediation through government funded organisations such as Relationships Australia or Uniting Care at a reduced cost. Alternatively you can contact a private mediator. It is up to you whether you have your lawyer with you at mediation.
Once you have attempted mediation you will be issued with a Section 60I Certificate which will enable you to file an application with the Court if necessary.
In some circumstances, you may not be required to attend mediation. These include matters where there are urgent circumstances or allegations of family violence.
A large number of family law dispute resolve at mediation. The process can be very useful to parties in narrowing the issues and understanding the position of the other party. Before you attend a mediation we recommend that you seek legal advice to gain an understanding of your legal rights, the risks involved in entering into an agreement and the consequences of not reaching agreement.
We have reached agreement, do you we need to formalise it?
There is no legal requirement to have your parenting agreement formalised. Depending on the age and stage of development of your children and the degree of communication between you and the other party, you may wish to keep your agreement informal so that it can be amended and adapted to the changing needs of the children and each of the parties.
If you do wish to formalise your agreement, you can do so by entering into a Parenting Plan or a Consent Order.
Before making a decision about whether to formalise your agreement or not, it is important you understand the consequences of your decision. We recommend speaking with a specialist family lawyer to discuss your options.
What is the difference between a Parenting Plan and a Consent Order?
A parenting plan is a written agreement that is signed by the parties and sets out the agreed parenting arrangements for your child/ren. You and your former spouse can agree to change your parenting plan at any time.
Parenting plans are not enforceable however you can apply to the court to make an Order in the same terms. If court proceedings are commenced after you have made a parenting plan, the court must consider the terms of the parenting plan when making an Order.
If you want to formalise your parenting agreement in a way that is legally enforceable, you should apply for a Consent Order.
A Consent Order is made by both parties jointly lodging an application with the court which includes a draft of the orders you are seeking. A Registrar of the Court will review your application and the draft order and, provided it is in the best interests of the children to do so, will make the Order.
Consent Orders are legally enforceable against both parties and there are consequences for failing to comply. Either party can file a Contravention Application and ask the court to punish the other party if they breach a term of the consent order.
At HRT Family Lawyers we can assist you with drafting parenting plans or consent orders. Contact us to arrange an initial consultation today.
When do I apply to Court for parenting orders?
If you have attempted to resolve your parenting dispute at mediation and you have been issued with a Section 60I Certificate, you can file an application with the Court seeking parenting orders.
The Court has the power to make orders in relation to children that deal with all aspects of their care including:
- Who has the right to make long term decisions for the child/ren such as where they attend school, whether they practice a particular religion, what medical treatment they should receive.
- Where and who the child lives with;
- Who the children spend time with and how often;
- Whether there should be any restraints on the children’s time with a parent or other person (such as a grandparent), for example, should that time be supervised? Should it include overnight time?
- Overseas travel and passport applications.
How do I apply for a parenting order?
To commence proceedings in the family law courts, you will need to file three documents:
- An Initiating Application form which sets out the interim and final orders that you are asking the court to make;
- An Affidavit which sets out your evidence in support of the orders you are seeking.
- A Notice of Child Abuse, Family Violence or Risk form. This is a mandatory screening form that ensures families and children receive appropriate and targeted intervention where allegations of abuse and/or family violence are made.
It is very important to ensure that your documents are drafted correctly and contain all relevant information for the court. We recommend that you seek specialist family law advice prior to filing any documents with the court.
Who can apply for a parenting order?
Any person who is concerned with the care, welfare or development of a child can apply for a parenting order. Typically this will be the children’s parents, step parents or grandparents but may include other persons depending on the particular circumstances of the family involved.
What does the court consider when making a parenting order?
The paramount consideration for the Court when dealing with parenting matters is always what is in the best interests of the children. When working out what that is, the Court must take into account a number of factors. The two primary factors the Court must consider are:
- The child’s right to have a meaningful relationship with both parents; and
- The need to protect the child from physical or psychological harm or from being exposed to abuse, neglect or family violence.
There are a number of additional considerations the Court will take into account including the relationship between the children and each of the parents and any third parties, any wishes expressed by children as well as cultural and religious considerations.
What is Parental Responsibility?
Parental responsibility means all the duties, powers, responsibilities and authority which parents have in relation to their children. This includes the power to make decisions about their long term care, welfare and development.
When the Court is making a decision about parenting arrangements, the first thing they have to decide is whether both parents should have equal parental responsibility or whether parental responsibility should be given to one parent only (sole parental responsibility).
There is an automatic presumption that it will be in a child’s best interests for their parents to share parental responsibility. However that presumption does not apply if the Court is satisfied that a parent has engaged in abuse of the child or they have engaged in family violence.
If the court makes an Orders for equal shared parental responsibility then they must consider, at first instance, whether the child spending equal time with both parents is in their best interests and is reasonably practicable in the circumstances. Where equal time is not considered to be in the child’s best interests, the Court will consider making an Order for the children to live with one parent and spend substantial and significant time with the other parent.
Substantial and significant time is where the child spends time with the other parent on week days, weekends and holidays allowing both parents to be involved in the child’s day to day activities and routines.
What is a Family Report?
It is common in parenting matters for the Court to seek independent evidence from an expert in relation to the appropriateness of the current parenting arrangements and what arrangements are likely to be in the children’s best interest. This expert evidence is usually provided by a psychologist or family consultant.
Parties may engage an expert privately to prepare a family report or one may be appointed by the Court.
The observations and recommendations of a family report writer will usually have a significant impact on the outcome of your parenting case. It is very important to get specialist family law advice before you attend a family report interview. Seeking advice before a family report writer is appointed is recommended.
