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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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.
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.
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.
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.
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.
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:
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:
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.
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 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:
Substantial and significant time means the following:
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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