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Parenting children during a relationship breakdown can be complex and challenging. You not only have to navigate your own emotions, you also have to factor in the needs of your children as family breakdown can have a significant impact on the development of the child.
Parenting matters under the Family Law Act
In Australia, Family Law is dealt with at the Commonwealth level through the Family Law Act 1975 (Cth). Each state in Australia complies with the Family Law Act, however, the Family Law system is slightly different in Western Australia.
Western Australia operates differently because it has not referred its Family Law powers to the Commonwealth. This means that married couples are dealt with under the Commonwealth system, however, de facto couples are dealt with under the State’s system. This impacts on property settlement and parenting matters for de facto couples. The Family Court of Western Australia is the only court that deals with Family Law in Western Australia.
In every other State and Territory, there are two courts responsible for hearing parenting matters:
1. Federal Circuit Court of Australia – most family law proceedings take place in this court, including parenting matters.
2. Family Court of Australia – serious and complex family law matters such as those involving child abuse are heard in this court.
The Australian Government, under the guidance of the Attorney-General, is in the process of amalgamating the Federal Circuit Court of Australia and the Family Court of Australia so that all Family Law matters will be heard in the one Court.
The best interests of the child
Before making a decision relating to children, the court considers the best interests of the child. The court also prefers that where possible, parents make a genuine effort to make decisions regarding their children rather than relying on the courts. You must have a reasonable excuse to not actively attempt to resolve your dispute prior to applying to the Court, such as significant family violence. It will greatly assist you if you can provide medical and/or Police records in support.
Some parenting decisions the court can make include:
- Who the children live with
- Where the children go to school
- Who the children can spend time with e.g. family members, family friends, etc.
- Medical decisions
- Who the children spend holidays and special occasions with e.g. Christmas, birthdays, etc.
It is a common misconception that equal shared parental responsibility means equal time to with the children. That is not true. Both parents are equally responsible for the care of their children, however, it may not be safe or practical to have equal access to or time with the children. This does not negate your responsibilities to pay child support. You can make a private arrangement in regards to child support or formalise it by making an application to Services Australia.
A parenting agreement is an agreement between the parents about how they will look after their children. A parenting agreement sets out the same information as above.
A parenting agreement can be informal or formal and amended at any time to reflect changing circumstances.
Informal parenting agreement:
An informal parenting agreement can be a verbal or written agreement between parents. A written agreement can be drafted during your mediation sessions with the help of the mediator.
An informal parenting agreement is not binding and can be amended at any time. It is not enforceable. An informal parenting agreement is recommended for young children as circumstances quickly change as they grow up e.g. starting school, extracurricular activities, etc.
Formal parenting agreement:
Formal parenting agreements are also called consent orders. A formal parenting agreement is a written agreement, reached by both parents, that is then presented to the Family Law courts to be signed off on. It is binding and enforceable and the courts take breaches seriously.
You can apply directly to the court for Parenting Orders, however, if you have made no attempt to establish a parenting agreement before applying, it is highly likely that the court will refer you to mediation before it will hear your matter.
Parenting Orders set out the day-to-day care arrangements for children. They are enforceable and the court takes any breach seriously.
The Court considers each parent has an equal shared responsibility for their child. Where appropriate, the Court will consider equal time. However, it may not always be appropriate, for example, when one parent lives too far away. In that event, the Court will consider substantial and significant time, for example, a week about the arrangement.
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Attend mediation with a family dispute resolution practitioner (mediator) to establish a parenting plan if you do not have parenting arrangements in place. If your mediation is successful, you can apply to the Court for Consent Orders to formalise your parenting agreement.
If Mediation Unsuccessful
If mediation is unsuccessful, for example, it has been deemed inappropriate due to family violence, the mediator will issue a section 60I certificate. This enables you to apply to the Court for Parenting Orders.
Obtain Interim Court Orders
Apply to the Court for Interim Orders and Final Orders. This will require you to complete an affidavit setting out the Orders you want and why. You will also need to complete a Notice of Risk to notify the Court of domestic violence and whether any Apprehended Violence Orders are currently in place.
Court Protects Children’s best interests
The Court may appoint an Independent Children’s Lawyer to assist your child/ren during the Court hearing and assist the Court to determine what is in the best interests of the child.
Interim Orders in place
Interim Orders allow the Court to make temporary orders in relation to the care of your children until your matter is finalised. You must comply with the Interim Orders. Contravention of the Orders can have significant and long-term consequences such as not being allowed to see your children.
Case conferencing may take place during the court process. This allows parties to discuss any issues that may arise and try to resolve them as early as possible.
Final Court Order
The Court will make Final Orders.
Independent Children’s Lawyer
The Independent Children’s Lawyer is appointed by the Court when:
- There are allegations of child abuse or neglect
- There is a high level of conflict amongst the parents
- There are allegations made as to the views of the children and the children are of mature age to express their views
- There are allegations of family violence
- Serious mental health issues exist in relation to one of the parents or children, and/or
- There are complex or difficult matters involved.
An Independent Children’s Lawyer is responsible for ensuring the children’s views are acknowledged and providing an independent perspective about what is in the best interests of the child. They can do this by:
- Meeting with the child/ren
- Speaking to the child’s counsellors, teachers, etc
- Organising and reviewing reports from Police, Department of Communities and Justice, psychiatrists, doctors, etc
- Arranging a family report (an independent assessment of the issues to assist in ascertaining what is in the best interests of the child, and/or
- Questioning witnesses, parents, etc.
The above is general legal information only and should not be considered legal advice. You should speak with a member of our Family Law team for legal advice tailored to your specific legal matter. The courts deal with matters on a case-by-case basis. It should be noted that there may be delays due to COVID-19.
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Frequently Asked Questions.
A parenting order lasts until it is changed or the child turns 18, marries or enters into a de facto relationship, is adopted, or dies.
No. Unless there are Court Orders in place, you cannot stop your children from having a relationship with their other parent. If you prevent your child from having contact with their other parent without a reasonable excuse, the Court will take it into consideration when making its Orders.
If your circumstances change, for example, you need to move to Queensland for work, and you need to amend a Parenting Order,
- Enter into a new Parenting Plan. You do not need to attend Court to do this, however, if you want to formalise it, you can apply to the Court for Consent Orders,
- If you agree to change the terms of the Parenting Order, you can sign a draft copy of the Orders and file them with the Family Court of Australia without the need to appear before the Court.
A Parenting Plan is an agreement between the parties about how the children of a relationship are to be cared for. It can be a formal or informal agreement. Informal agreements are not legally binding.
A Parenting Order is a formal Court Order setting out arrangements for how children are to be cared for. These orders are legally binding and enforceable.
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