The law regarding children’s matters can sometimes become complicated. Our solicitors can provide you with all the information you will need to proceed with parenting matters after the breakdown of a relationship.
Parental Disputes. Parental disputes are issues that you are likely to face after the breakdown of a relationship. There are a number of ways to reach an agreement in relation to your children and who and when they spend time with both parents and other family members this can be reached using the following methods:
An informal agreement. An informal agreement is an oral agreement between the parties. This can only work when the parents have a good co-parenting relationship, if there is a problem which effects the parties ability to effectively communicate then this is not the best option.
A Parental Plan. A parenting plan can be reached at a mediation or privately between the parties, it is a structured plan for when and where the children will spend time. A parenting plan is not a legally binding documents and not enforceable by the courts.It is only as good as the good will between parents.
A Consent Order. A consent order is like a parenting plan, however the agreement will be registered and considered by a Registrar or Judge of the Family Court, if the Judge considers the order to be appropriate in the circumstances, specifically that it is in the best interests of the children, it will be enforced.
Issues to be considered in relation to parenting plans or consent orders are;
– Living arrangements;
– Time spent with a parent and/or other family members;
– Parental Responsibility and the form of consultation to exercise parental responsibility and any other orders in relation to the conduct of the parents;
– The primary considerations are, the benefit to the child of having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm and from being subjected or exposed to abuse, neglect and/or family violence.
If No agreement is reached the matter may proceed to Court for a Judge to determine the facts on the evidence presented. On the evidence the Court must find that the arrangements are ‘reasonably practicable’,
On deciding whether the proposed arrangements are ‘reasonably practicable’ will depends on a number of factors including;
– How far the parents live from each other.
– The parent’s current and future capacity to implement an arrangement for the children spending substantial or significant time with both parents.
– The parent’s capacity to communicate.
– The impact such an arrangement would have on the child.
– The manner in which parents will consult with each other about decisions made in relation to their children ( for example schooling, religious and cultural upbringing, overseas travel)
– The way in which any future disputes will be resolved.
– The way in which it is agreed that arrangements for the children can be changed;
– Financial support of your children;
– Or any other relevant matter.
Separation and Divorce
If you are married, then you must be separated for 1 year before you can make an application for Divorce. However, you can resolve all matters in relation to children, parenting and property at any time after separation.
If you are in a de-facto relationship all matters in relation to property must be commenced within 2 years of the separation.
Family Dispute Resolution Conferences (FDRC)/ Mediation
Family Dispute Resolution Conferences are regularly utilised to negotiate the terms of parental arrangements and property settlement. FDRC and Mediation are used interchangeably.
On most occasions an Initiating Application to the Court for Orders cannot be sought without the party first attempting to resolve the matter by way of a mediation. A certificate (60i) will be issued by the mediators to aby party that participated which will need to accompany the application to the court.
Mediation is a process that is facilitated by a family dispute resolution practitioner (“Mediator”) to help people affected by separation or divorce to resolve their parenting and property disputes with each other.
The mediator is an independent third party who assists the parties with a view to reach an agreement in relation to the matters raised. The mediators role is to insure that the mediation process is fair and civil, that each party can be fairly heard, the issues in dispute are identified and to guide the parties through the legal process and the likely outcome should the matter proceed to court.
Emergency Recovery
Has your child has been taken from your care, being withheld and at risk of harm, if so you may need to make an application to the court for a recovery order. If you fear for the safety of your child due to threats and/or violence an emergency application can be made to be heard quickly. If a recovery is ordered by the Courts, the matter will be referred to the Australian Federal Police so that they can recover the child/ren safely. The matter will then be referred back to the court so that each party can be heard as to what is in the best interest of the child.