You have had counselling with your partner and possibly your own counselling to solve Parental Responsibilities. Matters cannot be resolved. You have received financial advice to know what your financial future holds.
You have endeavoured in every way possible to negotiate with your partner but without success. The stumbling block seems to be who is to care for your children.
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However, you may have been successful in taking Parental Responsibilities.
If you have been able to work out a parenting plan with your partner and where you can agree on arrangements for your children’s future in relation to spending time with yourself and your partner and you are in agreement on the children’s future schooling, co-curricular activities and other aspects of their lives, then you can formulate these arrangements in consent orders or a parenting plan.
Parental Responsibilities and Parenting plan
There are two forms of parenting agreements or plans. The first is a limited agreement, which sets out the care arrangements for the children and other issues that you believe should be determined between yourself and your former partner.
The terms of this agreement can be changed at any time in the future to suit your needs, your partner’s needs and the needs of the children.
The other parenting agreement is a binding parenting plan. You do need advice from a solicitor when entering into an agreement of this nature. These plans require legal advice.
The solicitors are required to sign a certificate, which will be attached to the agreement stating that they have given you independent legal advice in regard to the terms of the agreement.
The plan can only be changed by agreement between yourself and your former partner or by an order of the Court. it is a binding agreement and the parties are bound by the terms until changes can be agreed or a Court order made.
Consent Orders
An application for consent orders is a Family Court of Australia prescribed document, which sets out your agreement in relation to your children. It is important to seek legal advice in relation to the drafting of this document and in relation to the effects of the terms set out in any agreements you may reach. The application is made to the Court by way of an application for consent orders.
The consent orders setting up your agreement are attached to this document, and when lodged with the Court, are reviewed by Registrar of the Court and then sealed. When sealed, they become Court Orders. Again, it is difficult to change these orders once the orders have issued.
To change the orders, there must be significant changes to the terms set out in the orders or in relation to the parenting of the children. There is a threshold of a significant change in circumstances required to overturn the Court Orders before a Court would even consider hearing a future application to change the terms of the orders previously made.
In regard to parenting plans, the terms of the parenting plans are not enforceable per se. However, a Court may consider the terms of any parenting plan if either party makes an application to the Court seeking children’s orders.
Parental Responsibilities, plans and consent orders may deal with, amongst other things, the following matters:
- Where the children shall live;
- The amount of time the parent spends with the children;
- Parent responsibility for the children;
- How often the child has a telephone or other communication with the other parent.
It is to be noted that the Family Court cannot make orders regarding the financial support for the children. The jurisdiction for this is with the Child Support Agency. A parent can either make an application for child support with the Agency or if agreement can be reached between the parents on what financial support is to be given to the children, then those terms can be incorporated in a Child Support Agreement, which is then filed with the Child Support Agency and becomes binding once accepted by the Registrar of the Agency.
What if you cannot negotiate children’s issues
If you wish to take your matter to Court because of a disagreement in regard to the parenting of the children or to vary previous Court Orders or a Child Support Agreement, there are a number of issues that need to be addressed. The Court will require that the parties attend compulsory family dispute resolution prior to the filing of the application in the Court. The Court requires that the parents attend mediation or counselling.
The legislation is to encourage the parents to resolve any dispute without the necessity of having the Court decide the issue for them. It will be necessary for the parents to make a genuine attempt at mediation or counselling to resolve such issues. If the parents do not attend the mediation or fail to make a genuine effort, the Court may take that absence or failure to make a genuine effort into consideration when considering an order for Parenting Bill and when making decisions in regard to the children. It is necessary to obtain a certificate from the mediator or counsellor stating that such mediation or counselling took place, or if for some other reason the mediation or counselling was not able to be achieved.
Exceptions to mediation/counselling are:
- That the parties have reached an agreement for the care of the children and wish to make an application for consent orders;
- A parent is responding to an application already filed by the other parent in the Court;
- The Court has reasonable grounds to believe that either:
- Family violence or child abuse has occurred;
- There is a risk that family violence or child abuse may occur if there is a delay in making an application for a children’s order;
- Where a person has contravened an order or has shown serious disregard for orders relating to the children being orders made in the last 12-month period;
- Where the matter is urgent, for example:
- The children have been abducted;
- The location of the children is unknown;
- Where effective participation or mediation or counselling cannot be achieved because either parent is disadvantaged because of communication disabilities or because one parent lives in a remote location and is not readily accessible via a mediator or counsellor.
What are the principles adopted by the family court in determining the family arrangements for a child?
Shared Parental Responsibility
In making orders for shared parental responsibility, there are obligations on the parents to make decisions about major long-term Parenting Issues. The law requires that the parents must:
- Consult each other in relation to the decisions to be made about Parental Responsibilities; and
- Make a genuine effort to come to a joint decision about Parental Responsibilities.
The Family Law Act sets out the objectives and principles to be considered by the Court. The Court must apply a presumption that it is in the best interests of the children for the parents to have equal shared parental responsibility. This presumption is rebutted if:
- There are reasonable grounds to believe that there has been an abuse of or violence to a child or children;
- Evidence exists that satisfies the court that it is not in the best interest for the children.
Have the parents fulfilled their Parental Responsibilities?
The court, when deciding parenting orders, will consider the extent to which the parents have:
- Taken or failed to take the opportunity to participate in and in making decisions about major long-term issues in relation to the children;
- To spend time with the children;
- Communicate with the children;
- Assisted or hindered each other;
- To participate in making decisions about major long-term issues in relation to the child or children;
- To spend time with the children;
- To communicate with the children;
- Fulfilled or failed to fulfil the parental obligation to maintain the children.
What does a major long-term issue mean?
A major long-term issue is something related to the care, welfare and development of the children. Major long-term issues include, but are not limited to, the children’s:
- Name, health and education, both current and future;
- Religious and cultural upbringing;
- Changes to the children’s living arrangements make it significantly more difficult for the children to spend time with either of the parents.
What if the issues are not major long-term issues?
In such cases, the parents are not obliged to consult with each other on issues that are not major long-term issues. This means that the parent with whom the child is spending time will usually not need to consult with the other parent about day-to-day decisions, such as what the child eats, wears or does for activities when the child is residing with that parent.
What if a parent forms a new relationship with another person?
The law does not consider it to be a major long-term Parental Responsibility for either parent to enter into a new relationship with another person. However, such a decision would be a major long-term issue if either the parent or the partner of that parent were to move away, making it significantly more difficult for the child to spend time with the other parent. The legislation makes it difficult for a parent to relocate with their child to another area on a whim or without just cause. The Court will also give consideration to the attitude of the new partner for a parent of the children. The Court will only intervene if the new partner creates major Parental Responsibilities for the children and in the parenting of the children.
The presumption that the parents spend equal time with their children after separation.
The Court must apply a presumption that equal parenting is in the best interests of the children.
The Court must apply a presumption that equal time with the parents is in the best interests of the children. This presumption can be rebutted if any of the factors outlined before are established, the Court must then consider:
- Whether equal time spent with the parents would be in the children’s best interests;
- If equal time is not appropriate, the Court must then consider whether the children should spend substantial and significant time with either parent and if that is in the children’s best interests;
- After giving consideration to any or all of the matters which have been listed beforehand, the court will then make a parenting order that is appropriate in the circumstances.
What does substantial and significant time mean?
Substantial and significant time means the following:
- The days that the children spend with either parent, including days that fall on weekends and holidays;
- Days that do not fall on weekends or holidays, for example, school days;
- The time that the children spend with each parent will allow for both the parent to be involved in the child’s daily routine; and
- Also occasions and events of particular significance to them;
- Daily routine means activities which include a parent or a parent’s partner doing such things as helping the child with their homework or preparing meals for them;
- Particularly significant events may include the children’s birthdays and festive occasions such as Christmas and Easter;
- The time the children spend with each of the parents will allow the children to be involved in occasions and events that are of special significance to the parents, for example, the respective birthdays of the parents, family gatherings, cultural events and other types of celebratory occasions that are important to the parents and the children.
- Or their parents to have equal shared parental responsibility.
What does the term best interests of your child mean?
The Court when determining the best interests of the child gives consideration to the following factors:
- The potential benefit of a child or children having a meaningful relationship with both parents;
- The need to protect the children from physical or psychological harm resulting from subjection or exposure to abuse, neglect or family violence;
- Any views expressed by the children and any factors such as the child’s maturity level of understanding that the Court thinks are relevant when giving weight to the child’s wishes or view;
- The nature of the relationship of the child with both parents or other persons, including the child’s grandparents and/or extended family;
- The willingness and ability for the parents to facilitate and encourage a close and continuing relationship with the children and with each other;
- The likely effect on the children of any separation from:
- Either parent;
- Any other child or person, including any grandparents or extended family members with whom the child has been living;
- The practical difficulties and expenses of the children spending time and communicating with both parents and whether that difficulty or expense will substantially affect the children’s rights to maintain personal relationship and direct contact with either parent on a regular basis;
- The capacity of the parents and/or their new partners and any other person, including the child’s grandparents and other extended family members to provide for the children’s physical, emotional and intellectual needs;
- The characteristics of a child or children and of the parents, including maturity, gender, lifestyle and cultural background;
- Whether a child has aboriginal or Torres Strait Islander heritage, and if so, the court must give consideration to:
- The child’s right to enjoy their aboriginal or Torres Strait Islander culture with other people that share that culture;
- The likely impact that the proposed parenting order will have on that right;
- The attitude demonstrated by the parents regarding the children and the responsibilities of parenthood;
- Any family violence order that applies to the child or children or a member of the child’s family, if the order is either:
- A final order;
- The making of the order was contested by a new person;
- Whether it would be preferable to make an order that would be least likely to lead to the institution of further proceedings in relation to the child or children; and
- Any other factor or circumstance that the court thinks is relevant.
Other powers of the court to solve Parenting Issues.
If the Court decides that it is necessary, it may order that the parents or either parent attend family counselling or family dispute resolution. The Court can also order the parties to participate in courses, programs or services that would benefit them with their parenting. The Court must always hold the best interests of the child as paramount when making decisions in regard to this. The overriding consideration given by the Courts to parenting is that the best interests of the children as paramount and overrides the wishes of the parents.
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