Children & Parenting Matters
Regardless of the breakdown of the relationship, parents have an ongoing obligation to act in the best interest of the child. A breakdown in the relationship can create instability and uncertainty and the parental dispute can intensify these feelings.
Reaching an agreement concerning the care of the child can provide parents and the child with a routine and minimise disputes over day-to-day arrangements.
Parenting Agreements made by Consent
The parents may agree to use a shared calendar or a web-based parenting application to reflect the spend time arrangements for the child. This provides a useful way of reflecting the various activities for the child without having to verbally communicate with the other parent.
Often shared calendars and parenting applications can be exported and provide a useful source of evidence of:
- the spend time arrangements for the child (which may be provided to the Child Support Agency and used in future Court proceedings);
- the communication and behaviour of the parents;
- financial, sporting and medical history of the child.
A Parenting Plan is an agreement between the parents that is reflected in writing, dated and signed by the parents. A Parenting Plan can also be made between other significant people in the child’s life.
A Parenting Plan can contain whatever the parents want such as spend time arrangements (including with grandparents and significant others), financial arrangements and how to introduce new partners to the child. There can also be provisions on how to resolve disputes and revise the agreement. This type of agreement can only be entered into by consent and is not legally enforceable (unless it has been historically registered with the Court).
As with informal agreements, Parenting Plans can be useful evidence of the spend time arrangements and each party’s capacity to comply with the agreement reached. However, a Parenting Plan is more detailed and structured than an Informal Agreement. Often Parenting Plans are formulated by the parties as part of a mediation or alternative dispute resolution process.
Parenting Plans generally work well where the parties can co-parent effectively and are compliant with the agreement. The agreement can be practical for a young child because it is likely the agreement will need to be amended every 9 to 12 months as the child ages and circumstance change. Parenting Plans provide flexibility and the ability for the parties to agree, and to some extent, control certain arrangements for the child.
Parenting Plans don’t work for everyone. Parties in high conflict disputes where there are allegations of violence and abuse and a history of non-compliance with agreements should obtain advice (and potentially counselling) before entering into a Parenting Plan. Further, a Parenting Plan is not enforceable in the Family Court and therefore either party can regularly fail to comply or terminate the agreement. In such circumstances, we suggest you obtain legal advice regarding the agreement and what other options are available in the circumstances.
If the parties reach an agreement by consent and they want to make the agreement legally binding, they may choose to file a Form 11 for Consent Orders in the Family Court. This application is often referred to as a “Form 11” or a “Consent Order”. This requires the parties to complete a structured court form and attach an Order Sought which both parties sign and date and file in the Family Court. The Court will consider the application and usually exercise their discretion in Chambers and may pronounce a Court Order in the same terms as the Order Sought without the parties attending the Family Court.
The difference between the Consent Orders and the other agreements is that it is not flexible, not easily amended and is legally binding on the parties. Further, a Consent Order has to meet certain legal drafting and form requirements and hence may not include certain clauses contained in a Parenting Plan. Either party to the Consent Order (once and if extracted as an Order) can seek to enforce the Order in the Family Court. Despite not being required to do so, both parties should obtain legal advice before entering into the Consent Order to ensure they understand the meaning and effect of the order they seek.
Contents of Agreements
When the parties reach an agreement by consent, they usually have much greater control over the co-parenting arrangements for the child. Some common agreements include:
- parental responsibility (who and how to make long-term decisions that impact on the child);
- when the child spends time with each parent (time, days and hand over arrangements);
- special spend time arrangements such as Mother’s Day, Father’s Day, Birthdays (the child, parents and significant others), Christmas, Easter/Religious Celebrations;
- school holiday periods (if the child is of school-age);
- extended holiday periods for travel;
- communication (between the child and the parent and between the parents) method of communication (telephone, video-calling, written, web-based parenting applications), the content of communication (relates to the child, medical emergencies, illness of a party and/or the child, access and release of information and/or medical appointments) restraints (involving the child in the dispute, denigrating the other party, posting to social media);
- other – arrangements concerning the child’s attendance at extra-curricular activities, restraints (consuming drugs and/or alcohol, relocation, exposure to a specific person), possession of the child’s passports.
Parenting Plans can contain broader and unenforceable clauses that would not be contained in Consent Orders.
The law (the Act) focuses on the rights and the best interest of the child and the responsibilities each parent has towards the child. This can be vastly different from what each parent considers their rights should be.
The Act is drafted to promote a meaningful relationship between the parents and the child. This must be balanced with the child being protected from physical or psychological harm which is the overriding consideration.
The Act specifies a list of additional factors that the Court must consider when deciding what is in the best interest of the child which includes:
- views expressed by the child (this depends on the age and maturity of the child);
- the nature of the relationship between the child and their parents and significant others;
- the extent each parent has taken or failed to take the opportunity to spend time and communicate with the child and participate in the long-term decision concerning the child;
- financial maintenance of the child;
- effect of any change in the child’s circumstances;
- the practical difficulty and expense of the child spending time and communicating with a parent;
- the capacity of each parent to provide for the child’s emotional and intellectual needs;
- the maturity, sex, lifestyle and background of the child and either of the parents;
- if the child is an Aboriginal child or a Torres Strait Islander child;
- each parent’s attitude to the child and to the responsibilities of parenthood;
- family violence involving the child or a member of the child’s family;
- a family violence order and the inferences that can be drawn;
- making an order least likely to lead to the institution of further proceedings; and
- any other fact or circumstance that the court thinks is relevant.
Parental Responsibility (decision making)
Under the Act, there is a presumption that both parties will have equal shared parental responsibility. This relates to both parties being involved in and making joint decisions concerning the long-term care, welfare and development of the child. Some examples of long-term decisions include but are not limited to the child’s:
- religious and cultural upbringing;
- health (including medical procedures and medicine);
- change of name; and
- living arrangements that make it significantly more difficult for the child to spend time with a parent.
Day to day issues are minor issues and decisions which are decided by the parent who has the care of the child at the time. For example, what the child has for breakfast. While it is preferable to speak to the other parent about what the child is wearing to the school book week parade, this is not a long-term decision and does not fall under the scope of parental responsibility.
The presumption of equal shared parental responsibility may be rebutted in circumstances where a parent has engaged in abuse and/or family violence and/or it is not in the child’s best interest. Further, an order can be made for one parent to have sole parental responsibility on one issue and joint on all other issues. For example, the Father has sole parental responsibility in relation to education.
Parental responsibility relates to decision making and not spend time arrangements.
Spend Time Arrangements
If there is an Order for equal parental responsibility the Court must consider making an Order for equal time. This does not mean that an Order will be made for the child to spend equal time with each parent or that there is a presumption for equal time.
If the Court does not consider it is in the best interest of the child to spend equal time, they must consider the child spending significant and substantial time with the child. That is, spending time with a parent that includes both days that fall on weekends and weekdays and allows the parent to be involved in the child’s daily routine and significant events.
The Court must consider if the spend time arrangements are practical and will consider many factors, including but not limited to:
- the distance and time to travel between each parent’s residence;
- the expense of the proposed arrangements;
- the child’s extra-curricular activities;
- the child’s schooling;
- the parent’s responsibility to care for siblings and significant others; and
- the parent/s working arrangements.
Attempting to Resolve the Dispute
It is far preferable to reach an agreement without commencing expensive, stressful and at times, lengthy Family Court proceedings.
Full and Frank Disclosure
Each party has an obligation to provide the other party with documents that are relevant to the dispute at the commencement of negotiations. Some common examples of disclosure documents provided to the other party include the child’s medical records, evidence about family violence and abuse, text message/email evidence, photographs, diary entries etc.
Full and frank disclosure in an ongoing obligation and remains until the conclusion of your matter.
Options to Resolve the Dispute
Once the parties have provided full and frank disclosure the parties should attempt to resolve the dispute in good faith and may choose to:
- make a formal written offer and attach a Parenting Plan or Consent Order; and
- engage in verbal negotiations; and
- engage in Mediation, Mediation Style Conference, and/or other forms of Dispute Resolution. Unless there are special circumstances, the parties must attend mediation chaired by an accredited family dispute resolution practitioner and obtain a Section 60I Certificate before commencing an action in the Family Court.
By trying to resolve the dispute using the aforementioned strategies (including obtaining a Section 60I Certificate) you will be satisfying your pre-action procedures before commencing Family Court proceedings. Further, if you have not resolved the dispute you may have at least narrowed the issues in dispute.
If you are unable to reach an agreement by consent, you may choose to commence proceedings in the Family Court seeking parenting orders.
In addition to seeking orders about parental responsibility, it may be appropriate to seek orders about:
- the appointment of a Single Expert Witnesses (“SEW”);
- the appointment of a Family Therapists;
- the appointment of an Independent Children’s Lawyer;
- subpoenaing information (the child’s school records, medical records, potentially counselling records, child-care records);
- seeking a location and/or recovery order to locate and recover the child;
- placing the child on the Federal Watchlist of the Australian Federal Police to prevent the child from leaving Australia;
- changing the child’s name where the parties are unable to reach an agreement by consent;
- relocating with the child;
- ascertaining the Father’s parentage of the child.
If you have proceedings on foot in the Family Court and have received a judgement that is not favourable to you, we can provide you with advice about appealing the decision.