AUTHORISED LEGAL AID PROVIDER – FAMILY LAW
So often we hear parents talk about “their rights” and “my child”. In fact, parents have no rights to “own” a child under Family Law legislation, but rather, parents have responsibilities. It is the child who has rights that are protected. It is the child’s right to be able to share a meaningful relationship with both parents and the child’s right to be protected from harm or a risk of harm.
Arrangements for a child should be in their best interests and the Family Law Act requires many factors be taken into consideration. Download the Parenting Legislation fact sheet for further information.
Ideally, when parents separate, if they are able to be respectful, reasonable and rational with one another and maintain a high level of communication they will be in a good position to successfully co-parent their children. Many people can’t.
We recommend that parents formalise arrangements for their children, to ensure that stability, security and routine is maintained in their children’s lives as they move between two households.
There are 2 ways to finalise and formalise arrangements for children:
1. The “Nice” Way – Settling Out of Court
If you and the other party agree on the arrangements for the children, you can either enter into a:
- Parenting Plan
A Parenting Plan is a written agreement between the parents that details mutually agreed arrangements for the children. This document is NOT legally enforceable, however by signing the Parenting Plan you are agreeing to adhere to the agreement and the Courts may take the Parenting Plan into consideration at a later date. Parenting Plans can be changed at any time if both parents agree to the changes.
Parenting Plans can include many matters relating to the children, for example:
- Living arrangements;
- Special days;
- Telephone contact;
- Parenting decisions;
- Medical issues;
- How children will participate in extracurricular activities;
- Financial support for the children; and
You should receive legal advice before entering into a Parenting Plan, so you fully understand your obligations and to ensure the Parenting Plan adequately reflects your agreement.
How we can help you – Obtain your instructions, provide you legal advice, negotiate with the other parent or their solicitor, prepare the Parenting Plan and execute the document with you.
- Consent Orders
If you reach an agreement with the other parent in relation to the arrangements for the children and both parents want the agreement to be formalised by way of a Court Order, then documentation can be prepared and filed with the Family Court.
If the Family Court considers the proposed orders to be appropriate, they will then seal the proposed orders and you will have fully enforceable court orders.
Consent Orders can be used to vary previous parenting orders if both parents agree to the changes.
We strongly recommend you receive legal advice before entering into an Application for Consent Orders, so you fully understand your obligations and to ensure the proposed orders adequately reflect your agreement.
How we can help you – Obtain your instructions, provide you legal advice, negotiate with the other parent or their solicitor, prepare the Application for Consent Orders and supporting documentation, execute documentation with you, file the required documents with the Family Court and obtain final Orders on your behalf.
2. The “Nasty” Way – Initiating Court Proceedings
If you and the other parent do not agree on the arrangements for the children, unfortunately you will be left with no other option but to go to court. This is a very stressful, lengthy and costly exercise and should be your last resort.
In most cases, before you initiate court proceedings you must first attempt to resolve the matter with the other party through mediation. Mediation can either be held by a private mediator appointed by both parties or by an organisation such as Relationships Australia.
When you attend the mediation, both parents are required to make a genuine effort to participate and attempt to resolve the matter. If the other parent refuses to attend the mediation or an agreement is not reached at mediation, the mediator will issue a s60I Certificate.
You will require this s60I Certificate to initiate court proceedings, unless you meet one of the following exceptions:
- The matter is urgent – for example you require an urgent recovery order for the return of a child;
- The Court is satisfied that there are reasonable grounds to believe that:
- there has been child abuse and/or family violence by a party;
- there is a risk of family violence by a party; and/or
- there is a risk of child abuse if there were to be a delay in applying to the Court;
- A party is unable to participate effectively in family dispute resolution; or
- Your application relates to an alleged contravention of an existing order that was made within the last 12 months, and there are reasonable grounds to believe that the person who has allegedly contravened the order has behaved in a way that shows a serious disregard for his or her obligations under that order.
You will then need to prepare and file an Application to the Court with the required supporting documentation. Once documents are filed with the Court, you will be provided a first Court Date and you will need to attend Court on this date. Unless you reach an agreement with the other party, this will be one of many Court attendances and your matter may continue for up 2 years if a Trial is required, unless the parties can reach an agreement during the process.
How we can help you – Take your instructions, provide you sensible and cost effective legal advice, negotiate with the other party or their solicitor, prepare the required court documentation, file the require court documentation with the court and arrange service on the other party, represent you at court and obtain interim and final court orders.
Contact Sempre Vero Lawyers to discuss your children’s issues with an experienced Family Law solicitor.