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Agree Childcare Arrangements
It is recommended that separating/divorcing couples try very hard to reach an amicable agreement regarding the residency and contact arrangements for the children and this approach is encouraged by the Family Court. For the parenting plan agreed in this way to be recognised under the Family Law Act, it must be in writing, dated and signed by both parents. This can be re-negotiated and changed over time with both parents agreement.
If you wish to have the parenting plan legally binding, you can register it with the Court without having to actually attend Court by way of a Consent Order. Note that changes to a registered parenting plan would need to go through the court again.
If you cannot agree on the arrangements by way of a parenting plan or consent order, the matter can be settled by the Court via an Order.
As of 1st July 2008, the family law system has made Family Dispute Resolution a requirement before you can apply to Court for a new Parenting Order or changes to an existing one. Family Dispute Resolution is the legal name for mediation and conciliation services that can be used to help people going through separation and divorce to resolve disputes without having to go to court. More information about how to do this and help with finding a registered family dispute resolution provider can be found at Family Relationships Online or Relationships Australia.
In order to proceed to court to obtain a parenting order, proof must be shown that the compulsory resolution attempt has been made by way of a certificate issued by a registered family dispute resolution provider, unless you meet one of the exception criteria below:
Exceptions to Compulsory Family Dispute Resolution
- You are applying for an agreed Consent Order.
- You are responding to an application made by the other party.
- The matter is urgent.
- The court is satisfied that there are reasonable grounds to believe there has been family violence or child abuse, or that there is a risk of these should there be any delay.
- Where practical reasons make dispute resolution ineffective, such as distance from a provider of the resolution services, or an incapacity of some kind.
- Where a person has contravened and shown a serious disregard for a court order made in the last 12 months.
There are three types of orders and you need to specify which you are submitting when applying to the court. They are:
- Consent Orders - to register the plans that you both have agreed on. Consent orders have the same legal effect as an order made after a Court hearing, therefore they are binding on both parties.
- Final Orders – to bring a matter to a close.
- Interim Orders – for urgent cases, these last until other orders or a final order is made.
Orders fall into two categories these being parenting orders covering the care arrangements for the children, and financial orders covering spousal maintenance as well as the division of property, superannuation, financial assets and liabilities.
The remainder of this section describes Parenting Orders. More information on financial orders can be found on the financial arrangements page.
The Family Law Act sets out the principles the Court will apply when assessing Parenting Order applications. The relevant sections are 60B, 60CA, 60CC, 61DA and 65DAA. These ensure that the child’s best interests are met by ensuring children, in so far as possible, have a meaningful relationship with both parents, are protected from physical and psychological harm, can fulfil their potential, and that their parents meet their parenting responsibilities. Registered parenting plans would need to keep these in mind when being drafted otherwise the court may not accept them.
Any person concerned with the care, welfare and development of a child can apply for parenting orders. This may include the child’s parents, grandparents or other relatives. The order determines one or more of the following:
- whom a child will live with including any shared arrangements;
- the time the child spends with the parent they are not living with as well as anyone else who is an important part of their life, e.g. grandparents. Spending time includes face-to-face contact, phone, letters and email etc;
- any other aspect of parental responsibility, such as education, religious and cultural upbringing, day-to-day care, welfare and development;
- where there is shared parental responsibility, the way the parties will consult with each other in order to make decisions affecting the child;
- child maintenance for children not covered by the Child Support Assessment Act;
- the steps to be taken before an application to vary the parenting order is made to the Court in the event that the needs or circumstances of either the child or parents change;
- how disputes regarding the terms or practical application of the parenting order will be solved;
- any aspect of care, welfare or development of the child, or any other parental responsibility matter;
- in addition to the above, the order may also deal with allocating responsibility for making decisions about major long-term issues relating to the child.
What does the Court take into account?
When deciding to make a particular parenting order, the Court must put the child’s best interests first. It does this by way of primary and additional considerations.
There are two primary considerations the Court must base their decision on:
- The benefit to the child of having a meaningful relationship with both parents.
- The need to protect the child from physical and/or psychological harm due to being exposed or subjected to abuse, neglect or family violence.
The following factors are also considered by the Court when assessing the Parenting Order.
- The child’s views and any factors the Court feels relevant, such as their maturity or level of understanding.
- The nature of the relationship the child has with each parent and others such as grandparents or other relatives.
- The willingness and ability of each parent to co-operate and encourage a close and continuing relationship between the child and the other parent.
- The likely effect on the child of any changes in his/her circumstances. This includes separation from either of the parents, any other child or person with whom the child has been living.
- The practical difficulty and expense involved with the child spending time and communicating with a parent. Also taken into account is whether that difficulty and/or expense will substantially affect the child’s right to a relationship and contact with both parents on a regular basis.
- The ability of each parent as well as other relevant people to provide for the child’s needs including emotional and intellectual needs.
- The maturity, sex, lifestyle, background, culture and traditions of the child and parents. Additionally any other characteristics of the child will be taken into account should the Court feel they are relevant.
- For Aboriginal or Torres Strait Islander children, their right to enjoy their culture, including enjoying it with others of the same culture, will be taken into account.
- The attitudes of each parent to the child and responsibilities of parenting.
- Any family violence involving the child or another member of the family.
- Any family violence order that applies to the child or family member if the order is final or the making of it was contested.
- Whether making the Parenting Order would lessen the chances of further proceedings in relation to the child.
- Any other information that the Court thinks is relevant.
Parental Responsibility / Time with Child
The Court makes the presumption that it is in the best interest of the child for his/her parents to have equal shared parental responsibility. Note that this does not necessarily equate to equal time spent with the child. If the Court believes that a parent, or person who lives with the parent, has taken part in family violence or abuse of the child or another child in the family, this presumption of equality will not apply.
If the parenting order states that the parents will have equal shared parental responsibility, the Court has to consider whether spending equal amounts of time with each parent is in the child’s best interest, is practical, and if so, consider making that part of the parenting order.
Where there is equal shared parental responsibility and the Court does not order equal time shared between the parents, the Court then has to consider whether substantial and significant time with each parent is in the child’s best interest, is practical, and if so, consider making that part of the parenting order. Significant and substantial time is considered to be:
- Includes week days, weekends and holidays
- Allows the parent to be involved in the child’s daily routine, special occasions and events.
- Allows the child to be involved in the parent’s special occasions and events.
Registering a Parenting Plan – Consent Order
Where agreement has been reached amicably, a parenting plan can be made legally binding by filing a consent order with the Court. Note the consent order can cover financial and property matters as well. The process to do this is as follows:
|1. ||Type up the orders you want in a draft Consent Order bearing in mind the information above regarding what the court will take into account. Each order must be in a separate, numbered paragraph and each page must be signed by each party. Date the last page which should be the same day you swear/affirm the affidavit in the application (see point 3). |
|2.||Complete the Application for Consent Orders form. Both parties must complete their separate parts and sign it. If you have had independent legal advice regarding the orders, your lawyer must complete the section titled Statement of Independent Legal Advice. |
|3.||Both parties must swear or affirm the Application before a Justice of the Peace, Lawyer or other authorised person in their state or territory. |
|4.||Make two photocopies of the signed Application for Consent form as well as two certified copies of the draft consent orders. |
|5.||File the following documents in the family law registry either by hand or post. It is recommended to deliver by hand as any problems with the paperwork can be sorted out quickly:|
The application must be filed within 90 days of the date of the first affidavit otherwise the application maybe be refused.
Once filed, the registrar will consider the application. If they decide the orders should be made, the register will sign the proposed orders and sealed copies will be sent to you. If not, a notice is sent to you with a brief explanation of what needs to be done and sometimes it will be necessary for the application to be heard in court.
Interim Parenting Order
An interim parenting order is one that seeks to make changes to current parenting arrangements prior to the parenting order being made final, therefore does not apply in cases where agreement has been reached by way of an unregistered parenting plan or an agreed consent order.
When considering interim parenting applications, the Court’s paramount concern will be the children’s best interests and will be especially aware of the need to keep stability and routine in their lives. As such, the court would normally only make changes to current long standing arrangements if there is an urgent need to do so.
Please note that an interim parenting order can only be sought when a final Parenting Order is also being sought.
Changing Parenting Orders
An existing parenting order can be changed by submitting a new one to the Court in a similar way to the original one.
If the existing order was made in a different Court or Family Court registry than the one being used to file the new one, then sealed copies of the existing order must also be filed.
Where parents cannot reach agreement about child maintenance, the rate of maintenance payable for a child can be determined by a court. As a guide to work out how much maintenance should be paid, the court can refer to the Child Support (Assessment) Act 1989 formula.
The court cannot take into account any entitlement of the child or the person with whom the child lives, to an income tested pension, allowance or benefit. The court must also disregard the income, earning capacity, property or financial resources of any person who does not have a legal duty to maintain the child, such as the partner of either the payer or the payee.
There are two categories of child maintenance:
Stage One Child Maintenance
Stage one child maintenance refers to maintenance agreed via orders obtained under the Family Law Act, 1975 (eg consent, final and interim) and applies to the following:
- parents who separated and have all their children born before 1 October 1989;
- over 18 year olds who are studying or have disabilities;
- children applying for maintenance in their own right;
- step parents;
- some cases where the payer is overseas;
- spousal maintenance.
Stage Two Child Maintenance
Stage two child maintenance refers to a formula based scheme under the Child Support (Assessment) Act, 1989 for parents who separated, or have children born on or after 1 October 1989.
For parents who are in agreement about child maintenance, the most popular method of recording their agreement is by a consent order as described above.