One of the most serious issues which often arises following a de-facto or marital separation are parenting arrangements for children.
There are three options for parents to consider:
- A parenting plan created by both parents and is not enforceable by the court
- A parenting order made by consent where both parents agree (Consent Orders)
- Orders created from a court trial or hearing
Ultimately, the Family Court is mainly interested in what is ‘in the best interest of the child’. This means the court will consider the needs of the child first, rather than the needs of each parent.
At this stage, parents can benefit from obtaining practical and professional advice from experienced family lawyers when completing a parenting plan or parenting order. This usually prevents the matter from becoming a court trial.
What is a parenting plan?
A parenting plan is where two parents discuss the care arrangements for their children. It is voluntary and deals with the day to day responsibilities of each parent for the child, where the child stays and how parents will consult in relation to long-term decisions about children.
Usually, this can be completed when the parents are amicable and there is little conflict.
The parenting plan must be written and signed by both parents. Other people who are significantly involved in the child’s life, like a grandparent or step-parents can be included in the parenting plan.
It is not enforced by law and can be changed anytime as long as both parents agree.
What is a parenting order?
A parenting order is when you choose to make the parenting plan a binding legal document.
It is presented to the Family Court and if the court is satisfied the parenting plan is in the best interests of the children, the court will then sign off to make it a legal, enforceable arrangement.
If one parent chooses to disobey court orders and there was no reasonable excuse as to why, then you can apply for a Contravention Order or a Recovery Order.
What are consent orders?
Consent Orders can be made by the Family Court where both parents have reached agreement as to the parenting arrangements.
At times, parents cannot agree with each other, in relation to what is best for the children. During these times, a court trial usually occurs to view all evidence and then make the decision.
However, only a small proportion of cases, less than 5%, need to be resolved through a court trial.
In our experience, this is true as more than 95% of our cases are usually resolved prior to this final step.
Creating parental plans and parental orders between estranged parents may be difficult for many reasons, which is why each case needs to be approached individually.
It is also important to obtain the right advice about your case as early as possible, to make informed decisions to determine the best outcome for the children.
We decipher the factors that help the courts make their holistic decision about the children’s best interests. Once the court has made their decision, the orders are binding for each parent.
If one parent chooses not to abide by the Court Orders, this is called a breach. Especially in cases where one parent does not return the children as stated in the court ordered documents, the other parent can apply for a Contravention Order or a Recovery Order.
What if we can’t agree on a parenting plan?
It is always best for the children to ensure the process of child arrangements runs as smooth as possible.
A family dispute resolution centre like Relationships Australia or EACH may be able to help you create a parenting plan with your ex-partner.
If you have tried this option and there was no resolution, please contact us to help you navigate through your options.
Child Arrangements and Family Violence
When the courts are looking at what is best for the child, they will look if any domestic or family violence existed in the past or present and the risk of the violence existing in the child’s future.
- The benefit of children having a meaningful, safe relationship with both parents
- The need to protect children from physical and psychological harm
- The need to ensure children are not neglected or seeing family violence
These items above are generally what a court considers first, when making a decision.
Child Arrangements and Travelling
Every child has the right to travel with either parent. However, this will be dependent on the type of parenting plan or court orders you have in place.
Parenting orders may include information about interstate and overseas holidays and the expectations for each parent to ensure the children are safe.
If you would like to travel overseas with your children and the other parent unreasonably forbids it, you are able to apply to the court to obtain legal permission.
If the court believes travelling overseas is in the children’s best interest, then they may allow the children to travel.
This is applies to cases where the other parent refuses to sign off on their children’s passport for no legitimate reason.
If there are genuine concerns about a child not being returned, prior to the child leaving, the courts may consider this information when making judgement on whether the child remains in Australia or not.
Child arrangements and relocation
Relocation can be interstate or to another town.
The courts will consider the best interests of the child, when hearing a relocation case.
The court has the power to prevent a parent from changing a child’s residence or limit the geographical area in which the child can live.
If you are wanting to relocate, it is important to discuss this with the other parent, if possible. If there is no resolution, then you will need to justify your reasoning for changing locations, if it goes to court.
If the other parent has relocated, with the children, without your knowledge and you have court orders, you may be entitled to obtain a Recovery Order.
If you are considering parental arrangements and would like a legal perspective, we can assist you in achieving a cost-effective and efficient resolution. Call or contact us via email if you would like more information or to speak with one of our accredited family law specialists.
Would you like to know more?Contact our family law team on 1300 424 452 to receive personalised advice about your case.