In Queensland, there are various ways in which separated parents can formalise parenting arrangements. Each method will vary depending on the facts of your individual circumstance and this blog aims to refine the pros and cons of each option.
Table of Contents
Definitions
Before we begin outlining the different approaches, it is useful to understand the following terms which are central to parenting matters in Queensland:
Presumption of equal shared parental responsibility
When making a parenting order, the Federal Circuit and Family Court of Australia (‘the Court’) must apply the presumption of equal shared parental responsibility.* This means that the Court will presume that it is in the best interests of the child or children for each parent to share the responsibility of long-term decision making. This presumption only applies to the allocation of parental responsibility and not time arrangements.
However, this presumption is rebuttable, meaning that various factors, such as a history of domestic violence, can influence the Court to rebut the presumption. If this happens, one parent will be provided with the sole parental responsibility of the making all long-term decisions relating to the child or children. Note that long-term decisions include education, health, name, changes to living arrangements and religious and cultural upbringing.
Equal time
If the Court makes an order for equal time, this means that the child or children will spend time equally with both parents, provided that this arrangement is in the best interests of the child or children. Equal time is unlikely to be granted if there is a history of family violence perpetrated by a parent or if the above presumption is rebutted.
Substantial and significant time
If equal time is not ordered by the Court, then the Court must decide whether spending substantial and significant time with each parent is in the best interests of the child or children. The best interests of the child or children will remain paramount when making this decision. Substantial and significant time may include arrangements whereby the child or children spend time with a parent on days that fall both on weekends and holidays or days that do not fall on weekends or holidays.
Learn more about: Recent amendments 2023 to the Family Law Act 1975
The arrangement will be substantial and significant if the arrangements enable the parent to be involved in the child or children’s daily routines and events important to the child or children, as well as the parent.
Reasonably practicable
In the context of parenting arrangements, reasonably practicable means that the Court must have regard to whether it is realistic for the child or children to spend equal or substantial and significant time with each parent. Here, the Court will likely consider the following factors when considering whether an arrangement is reasonably practicable:
- How far the parents live from each other;
- The parents’ current and future capacity to communicate with each other;
- The parents’ current and future capacity to implement an arrangement for the child or children to spend equal or substantial and significant time with each parent;
- The impact such arrangements may have on the child or children; and
- Other matters deemed relevant by the Court, such as the parents’ attitudes towards parenting the child or children.
Family violence
The Court takes matters of family violence very seriously. Under the Family Law Act, family violence means “violent. threatening or any other type of behaviour that coerces or controls a family member or which causes the family member to be fearful” (section 4AB(1)). Examples of this kind of behaviour include:
- Assault;
- Sexual Assault:
- Stalking:
- Repeated derogatory taunts;
- Intentional damage;
- Intentional destruction to property;
- Intentional causing injury or death to pets;
- Unreasonably withholding financial support; and
- Preventing contact with family members.
Note that the Court will examine whether the child or children have been exposed to family violence. Exposure means that the child or children can hear, see or otherwise experience the effects of family violence.
Your options
Parenting plans
Parenting plans are informal documents that outline:
- Any aspect of care, welfare and development of the child or children;
- The child or children live with;
- Who the child or children spend time with;
- Maintenance of the child or children;
- Who the child or children communicate with;
- The allocation of parental responsibility of the child or children;
- Detailing changeovers;
- The method of consultation of issues relating to the child or children between the parents;
- Process of dispute resolution if any issues arise; and
- Process to enable a change of plan to meet the needs of the child or children.
In order for an agreement to constitute a parenting plan, the agreement must be signed and dated by both parents. The agreement must be authorised by both parents without threat, duress or coercion.
While not a requirement, parenting plans can also be registered with the Court. Once registered, the parenting plan can only be changed or revoked upon Application to the Court. Parenting plans can be drafted at mediation, by solicitors or independently between yourself and your spouse. Please seek legal advice before signing a parenting plan.
Parenting orders
Parenting orders can be sought from the Court to finalise a parenting arrangement by way of Consent Orders, or to make legally enforceable decisions as to the arrangements that would be in the best interests of the child or children. Parenting orders can deal with all the issues listed under the Parenting Plan section of this blog. Parenting orders can also, amongst other things, allocate parental responsibility and order a parent not to engage in degrading behaviour in front of the child and children.
The following people can file an application seeking parenting orders:
- Either or both parents;
- The child or children;
- The grandparents of the child or children; or
- Any other person concerned with the care, welfare or development of the child.
Types of orders
Consent: a consent order is a written agreement between the parties that is filed with the Court for the Court’s approval. The Court is required to place the child or children’s best interests at the forefront of every decision. Once orders have been made by the court, the orders will be legally binding upon the parties.
Interim: these orders are temporary but still binding. Their purpose is to guide the parties until final orders are determined.
Final: final orders usually detail the parenting arrangements for the child or children. The orders will likely take effect until the child turns 18. However, to reflect the ever-changing nature of family life, the Court can always vary the final orders if they are no longer relevant or effective.
Injunction/interlocutory: these orders can be made ex-parte (one party is not present for the court event) and in relation to the protection of a child, parent or person that the child lives with or spends substantial and significant time with. An injunction can be sought if one party wishes to restrain a party or person from entering or remaining on the premises.
Location/recovery orders: if party A prevents party B from contacting or spending time with the child or children, party B may apply for a location/recovery order. The purpose of this order is to enforce party A to locate and return the child or children. Again, the best interests of the child or children remain paramount and each case will be uniquely examined with this lens.
Parenting plans and parenting orders: pros and cons
Parenting plans enable the parents to be flexible in their respective care arrangements. This option is less formal and cheaper because a parenting plan can be drafted independently of legal assistance. However, a parenting plan is not enforceable, meaning that there are no immediate consequences if a party was to breach a term of the agreement. If the matter was to proceed to Court, any breach of a term in a parenting plan will likely be examinable by the Court.
Parenting orders may be the more costly option; however, they are binding upon both parties. This means that there will be legal consequences if a party to the orders breaches a term. While this option will likely be more expensive, the peace of mind that binding orders often can offer may be valuable in some cases.
I have decided that a parenting plan best suits our situation
If you believe that the flexibility and cost-effective nature of a parenting plan is better suited for your family, you may draft, sign and date the plan without legal help. However, should you feel safer doing so under the guidance of legal advice, feel free to contact our office on 1800 662 535 or email us at team@jamesnoblelaw.com
If you believe that seeking parenting orders is the best option, you will need to file an Initiating Application with the Court, along with a few other mandatory documents.
Pre-action procedures
You will need to comply with a set of pre-action procedures before you file your Initiating Application for parenting orders. Firstly, you will need to attend Family Dispute Resolution and make a genuine effort to resolve the dispute. Once you and your spouse have participated in this process, you will be issued with a Section 60I Certificate which demonstrates to the Court that you attempted to reach an agreement outside of Court.
Family Dispute Resolution may not be suitable in all cases, especially where there is a history of domestic violence. In this case, the practitioner carrying out the Family Dispute Resolution session can issue a certificate that outlines that this step is not safe or suitable. Likewise, if you attend the session but your spouse does not, you will be issued with a certificate stating your attendance. Regardless of the outcome, you will need to file this Section 60I Certificate with your Initiating Application.
You will also need to complete and file (electronically) the following along with the Initiating Application:
- Notice of Child Abuse, Family Violence or Risk;
- Genuine Steps Certificate (this confirms that you have complied with the pre-action procedures);
- Parenting Questionnaire;
- Section 60I Certificate (as discussed); and
- Undertaking as to Disclosure.
Failure for parties to adhere to these pre-action requirements can have cost implications.
This process can be time consuming, costly and emotionally exhausting. We understand this and you are more than welcome to speak with one of our solicitors to discuss your options. Call us on 1800 662 535 or email us at team@jamesnoblelaw.com
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