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.
Before we begin outlining the different approaches, it is useful to understand the following terms which are central to parenting matters in Queensland:
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.
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.
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.
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.
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:
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:
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.
Parenting plans are informal documents that outline:
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 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:
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.
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 07 2112 3947 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.
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:
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 07 2112 3947 or email us at team@jamesnoblelaw.com
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