Disputes about ‘Parental Responsibility’
The Family Law Act provides for both parents to share parental responsibility for their children. This is different to who the children will live with and the amount of time they spend with each parent. Frequently referred by parents as ‘child custody’.
See our Frequently Asked Questions for more information on ‘parental responsibility’.
Disputes about Residence and/or the amount of Time the child/children are to spend with each parent
One of the most important decisions separating parents must make is where the children will live and how much time they will spend with each parent. It is preferable for parents to make these decisions rather than leave it to the Courts. We can work with you in exploring your options including mediation. However, some disputes do require a court decision. We have extensive experience in assisting parents both in and out of court to resolve their parenting issues.
Some of the options for resolving disputes are outlined below.
A Parenting Plan is a written agreement between parents, that is signed and dated by both parties, and deals with the parenting arrangements in terms of where children live, what time they spend with each parent, and how major long term decisions are to be made between the parents (i.e. how parental responsibility is to be shared). Parenting Plans may also include child support provisions, however, you would also have to enter into a separate Child Support Agreement in order for the provisions relating to child support to be enforceable.
A Parenting Plan is not legally enforceable and can be changed at any time by entering into a new Parenting Plan, provided you and the other parent can reach an agreement.
Although a Parenting Plan is not legally enforceable, you should always seek independent legal advice from a family lawyer before signing a Parenting Plan. This is because if your matter ends up in Court, the Court must consider the most recent Parenting Plan when deciding what Order to make with respect to the arrangements for the children.
To discuss the advantages and disadvantages of entering into a Parenting Plan or to obtain advice about parenting matters generally, please contact us.
A Consent Order is also a written agreement between parents, that is signed and dated by both parties, and deals with the parenting arrangements in terms of where children live, what time they spend with each parent, and how major long term decisions are to be made between parents (i.e. how parental responsibility is to be shared).
However, a Consent Order, once registered with the Court, is a legally enforceable document.
Without agreement from both parties to change the Orders, they can be very difficult to change at a later stage. This is because the Court is quite hesitant to change a Consent Order unless there has been a significant change in circumstances or a reasonable period of time has elapsed since the Consent Order was made. For this reason, it is important that you are certain that the agreement reflects the arrangements that you want for your children on a long term basis.
To discuss the advantages and disadvantages of entering into a Consent Order or to obtain advice about parenting matters generally, please contact us.
A parent needs the permission of the other parent before they are able to take the child/children to live in another town/city, another state or another country. If the other parent will not consent to the move, the Court will make the decision regarding if relocation is possible. It is vital that both parents facing a possible relocation of the children seek expert legal advice. For more information on International relocation of children please see our international family law page.
Recovery Order and Location Order Applications
If or where a child has been wrongfully retained by a person, a Recovery Order can be sought for the ‘recovery’ or return of the child/children, often without notice to the other party.
Where there is uncertainty about where the child/children are living or located, a Location Order can be used to require a third party, for example, a government department such as Centrelink, to supply information as to a child’s whereabouts to assist in locating a child/children wrongfully retained by a person.
An application to the Court must be made to obtain a Recovery and/or Location Order. In deciding whether to make a Recovery Order, the court is obliged to consider whether it is in the ‘best interests’ of the child/children to do so.
If made, Recovery Orders are administered by the Australian Federal Police, and are enforced by them, or by local police.
To obtain advice about applying for a Recovery or Location Order, please contact us.
Applications to the Court for Parenting Matters
In the event that you cannot reach an agreement with your ex-partner about parenting arrangements, it may be necessary to apply to the Family Court or Federal Circuit Court to ask the Court to make a decision for you.
In the unfortunate event that you happen to fall into the very small percentage of the population that has to go to Court to obtain Orders, unless your matter falls into one of the exceptions, you must first make a genuine attempt to reach an agreement (i.e. by obtaining a Certificate from a Family Dispute Resolution Practitioner to show that an attempt has been made to resolve your dispute) with your ex-partner before filing an application to the Court.
To obtain advice about applications to the Court for Parenting Matters, what qualifies as an exception to obtaining a Certificate or how to obtain a Certificate from a Family Dispute Resolution Practitioner, please contact us.
Surrogacy, Adoption, Guardianship and alternative ‘Parenting Pathways’
Australia does not currently have Commonwealth adoption laws. Instead, each state has it’s own laws which can make the process seem complex. Our lawyers have expertise and are well equipped to help those considering adopting a child or caring for a child of a family member.
Additionally, our firm has developed an alternative to adoption and surrogacy known as the ‘Parenting Pathway‘. This process is a combination of the best of the adoption and surrogacy laws and provides hope to families who may have previously struggled with traditional adoption.
To obtain advice about Surrogacy, Adoption Guardianship matters or ‘Parenting Pathways’ please contact us.