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Children and Parenting

The Family Law Act has had a number of changes since it was enacted in 1975 with respect to the terms used regarding children.  Prior to 1996 the terms used were “guardianship, custody and access”.  Following 1996 the terms used were “residence, contact and specific issues”.  All of these terms were replaced with the changes to the Family Law Act that commenced on 1 July, 2006.

Parental responsibility

Under the Family Law Act, both parents of a child who is not 18 have what is known as “parental responsibility”.  This means that both parents individually have all rights, powers, duties and responsibilities relating to their children, which no other person has.

When a Court is making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.  This is not a presumption about the amount of time that each parent spends with a child.

If the presumption of equal shared parental responsibility applies then both parents are required to jointly make decisions about major long-term issues, including schooling, religion, a child’s health, a child’s name and changes to a child’s living arrangements that make it significantly more difficult for the child to spend time with a parent (for example, moving a child interstate or overseas permanently).

It is important to remember that neither parent has more power than the other parent in relation to making major long-term decisions.  Unless the Court takes away equal shared parental responsibility from a parent, then both parents continue to have an independent and equal say in major long-term decisions concerning their child’s welfare. 

The presumption of equal shared parental responsibility will not apply in the following circumstances:-

  1. If there are reasonable grounds to believe that a parent (or other person who lives with a parent) has engaged in child abuse or family violence;

  2. In interim hearings where the Court considers it inappropriate for the presumption to be applied; and

  3. When the application of the presumption is not otherwise in the child’s best interests.

Documenting Your Agreement

For parenting matters there are two options available to reflect your agreement. They are either a Parenting Plan or a Parenting Consent Order.

Parenting Plan

A Parenting Plan is an informal agreement between parents that is not approved by a court and is not legally enforceable. Whilst there is no penalty for breaching the a Parenting Plan, they may be appropriate where parents get along well and want flexibility instead of a binding court order.

Parenting Plans can include a wide range of issues regarding a child’s day-to-day and long term care, such as: 

  • Where and with whom a child will live;

  • With whom the child will spend time;

  • With whom the child will communicate and how;

  • Where a child will go to school;

  • The allocation of parental responsibility (e.g. school, religion);

  • The form of consultation parents will have with each other regarding decisions to be made concerning a child’s care, welfare and development;

  • The process of dispute resolution between parents and of varying a Parenting Plan, if and when necessary; and

  • Issues regarding Child Support.

Consent Order

A Consent Order is a written agreement that is approved by a court. The relevant agreement is drafted in legal terms and signed by the parties. It is accompanied by an Application for Consent Orders which will include details about the parties and each of the children. This is as the court will only make the proposed orders into an order of the court once it is satisfied that the orders will be in the “child’s best interest”.

Once the orders issue from the court, the orders will be a legally binding agreement and the court can impose penalties if one or both of the parties refuse to follow the Orders. A court can only penalise a party for breaching an order if a Contravention Application is filed.

What if we can’t agree on the parenting arrangements

If parents can not agree to the parenting arrangements then an application can be made to the court for parenting orders. Parents are however required to make a genuine effort to resolve their dispute by family dispute resolution, before they make a parenting application in the Federal Circuit and Family Court of Australia.

Parties are required to have attended upon, and obtained a certificate (Section 60I) from, a Family Dispute Resolution Practitioner, before they can file an application.                                                                                                                                                                                                                                                                                                       

 There are limited exceptions to the requirement to attend family dispute resolution, which include:

  •  Where the application is urgent; or

  •  One or more of the parties is unable to participate effectively in family dispute resolution.

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