Once separated, in our experience it is important to plan put in place a structure around the care and maintenance of the child or children. A structured approached creates a routine on which both the parents and the children can rely on, creating certainty in very uncertain circumstances especially for children of the relationship.
An such agreements needs to be formalised either by way of a parenting plan or orders by way of consent. Any such agreement needs to be in the ‘best interest of the child’.
It is encouraged particularly in the interest of the child or children that parents are able to work amicably to develop an agreement. We can assist our clients to reach an agreement.
Common issues covered in any such agreement may be as follows:
The law does not tell parents how to parent; as long as the parenting and any agreements reached are in the interest of the child.
Where an agreement cannot be reached by consent or a parenting plan, and the dispute finds its way into court there are two types of orders that can then be made:
Interim Orders, are orders made by the court until the matter can be heard in full and a final decision is made. They are not the final order and they can be amended at a later date by the court.
These are orders given by the court either by consent of the parents or after a final court hearing that concludes the matter. Once the final orders are made; they cannot be changed unless there are change of circumstances requiring new orders or the decision is successfully appealed.
If the parents are in agreement as to living and care arrangement of the child, a consent order by way of a form 11 can be prepared and filed seeking orders in terms of the agreement reached. This is the most efficient, cost-effective method with the outcome being the most beneficial to all parties involved. It is noted, this is only possible where there are no circumstances of domestic violence or actual and imminent harm to the child being present. Where there are issues of domestic violence or harm the child legal advice should be sought immediately.
Once a form 11 consent application is filed, the application will be considered by a Registrar to ensure that the orders are practical and in the best interests of your children. If the Registrar deems, the proposed orders as suitable then you will receive a stamped copy of the orders from the Court.
Where an agreement is not reached, unless circumstances do not allow attendance at mediation the parties must attend mediation prior to filing an application in court. The application to the court must be accompanied by a certificate, called a section 60I certificate, which is issued by the mediator where mediation is not successful.
The application is filed together with an affidavit in the form of a case information affidavit and the section 60I Certificate unless there is an urgency and an exemption form is filed. These can be completed and it is important to proceed with caution and proper advice.
In determine the final outcome ‘interest of the child’ is the paramount consideration for the court. The court will consider all the relevant information presented by the parties including where appropriate the child’s views before making a decision. It is therefore important that the court is provided with all of the relevant information in the best form possible.
We take the upmost care and diligence to ensure our clients views are properly and fully provided to the court. We work with you to pre-empt issues, negate counter arguments and carefully respond to any accusations so that your case is exhaustive and well presented to the court and at mediations.
If a party breaches the court order, then the non-breaching parent can have recourse against the other parent. This is important where one parent may not be reliable or may help to keep the peace if issues are disputed.
There are a range of different issues that parenting orders cover. Below we set out below non-exhaustive list of issues that court orders may deal with:
Parental Responsibility
Parental Responsibility deals with the short- and long-term decision making about a child including but not limited to education or religion. The starting point is joint parental responsibility; unless this is not in the interest of the child for reasons including but not limited to harm to child, practical reasons or the inability of parents to communicate.
“Live with” Orders
Live with orders deal with who the child is to live with. Depending on the circumstances and age of the child, this can be split evenly or the child may live with one parent majority of the time if not all and spend time with the other parent.
“Spend time with” orders
Spend time with orders deal with time a child spends with the parent they do not live with. This may include time spend with the parent during school periods, weekends, school holidays or on special days such as birthdays and so on. This type of order is made where the child lives with one parent and spends time with the other, for example, each second weekend.
“Communicate with” Orders
This type of order outlines how the child will communicate with the other parent they are not living with.
Travel interstate and international
A parenting order can specify what travel arrangements and consent is required for a child to travel interstate or overseas.
Passports
Courts can make it clear whether the consent of both parents is required for a child to obtain a passport.
If you have concerns about the other parent taking the child overseas then you should contact us urgently, as there may be need to make an urgent application to prevent the child being removed from the jurisdiction.
An injunction is generally to stop a party from taking part in certain actions or behaviours. This may include for example stopping a party from remaining at a venue after delivering the child at changeover or allowing the child to be in the presence of a certain person.
It may also be relevant where say the use of alcohol or illicit drugs is an issue, an injunction may be sought to prevent the child be exposed to such behaviour for instance the parent may be ordered not to drink in front of the child or at all, and be subjected in some instances to regular urine and drug test.
Legal matters involving children often have a great deal of emotion involved with subjective opinions, especially in disputes, and the court will always look to the best interests of the child in deciding these matters.
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