Where parties are able to resolve parenting matters without going to Court, there are options available to formalise the agreement they have reached. Parties can enter into a Parenting Plan or Parenting Orders to document the terms of their agreement.
A Parenting Plan is a voluntary agreement which sets out parenting arrangements for children. It must be in writing, dated and entered into freely. However, a Parenting Plan is not enforceable at law (SEE: Contravention (Breaching) of Parenting Orders).
This means, that if either parent makes any application to the Court, for Parenting Orders, the Court is not bound to follow what is stated in the Parenting Plan. The law does however require the Court to have regard to the Parenting Plan, if it is in the children’s best interests to do so.
Before any application is made to Court, the parties must make a genuine attempt to resolve the issue in dispute by attending mediation. This is not a requirement in the case of Consent Orders.
Court Orders relating to children are referred to as ‘Parenting Orders’. When they are made by agreement, they are known a “Consent” Parenting Orders. Such Orders are made voluntary and set out the parenting arrangements for children in approved Court forms and are filed in the Court.
The Court and Parenting Orders
If there is a dispute between parents and the Court is asked to make Orders, the approach taken by the Court in making decisions as to who children will live with and the time that each parent spent with the children, is embodied in the Family Law Act 1975. This covers any matter touching upon the care, welfare and development of the children
The Courts paramount consideration is always the child’s best interest. The way in which the Court assesses the child’s best interest, is determined by considerations that are set out in Section 60CC of the Family Law Act 1975.
The primary considerations, are the benefit to the child of having a meaningful relationship with each parent, and the need to protect the child from abuse, neglect or family violence. There are also numerable additional considerations, which include, amongst other things: the children’s wishes
, the child’s relationship with each parent, the parents’ involvement in making decisions (or not) about major long-term issues about the children.
As part of this process, the Court will assess whether the parents should have Equal Shared Parental Responsibility or Sole Parental Responsibility.
What is Equal Shared Parental Responsibility?
Equal shared parental responsibility means both parents sharing major long-term decision making about the children. It is not the same as equal parenting time or shared care.
Equal shared parental responsibility includes making decisions about children’s medical, religious, cultural, education, arrangements. Sole Parental Responsibility is where a parent is allowed to make one or more of these decisions on their own.
Day-to-day decisions, such as what the children eat or wear, are not included, save and except as they may relate to cultural and / or religious matters.
There seems to be an understanding in the community, that a child can “make up their own mind” from a certain age, as to where they live and if they spend time with a parent or not. That understanding is incorrect.
Court Orders made under the Family Law Act, remain in force until a child is 18 years of age and there is no defined age when children can decide on their own arrangements.
When considering children’s wishes, the Court takes into account the emotional and intellectual maturity of children, as well as their age. However, it will not be the Court’s only consideration, as a whole range of factors will be assessed, with the paramount consideration being a child’s ‘best interests’.
Varying Parenting Orders
When there are existing Court Orders about the care of children, such Orders may only be varied by a Court, after a formal Application has been made. This is true irrespective of whether the Orders were made by consent, or following a Court hearing.
For the Court to be prepared to hear any future Application (let alone for it to be successful) there is a ‘threshold test’ to be met, where the Court would need to be satisfied that a ‘substantial change in circumstances had occurred’, or that ‘important information had not been disclosed when the existing Orders were made’.
The type of variation sought, however, might affect the nature of the evidence required to satisfy the threshold and also the nature of the evidence that the Applicant is capable of tendering. Accordingly, the Court might find a sufficient change of circumstances to reopen.
Normally a party may not apply to the Court for a Parenting Order, save and except Consent Orders, unless they have attended Family Dispute Resolution (Mediation) and an accredited family consultant has issued a section 60I Certificate. This includes new Applications, and Applications seeking variation to existing Orders.
A consultant will issue such a certificate if parties have attempted mediation and have been unsuccessful or if one party refused to engage in the process.
A copy of the section 60I Certificate, MUST be attached to the documents filed with the Court to initiate proceedings.
There are some exceptions to this requirement, such as cases involving family violence or child abuse or where the matter is urgent.
If you require advice or assistance please don’t hesitate to call today on (03) 59757611 or Enquire Online to arrange your initial Family Law consultation.
You can also find further information in our : Children and Family Law – Frequently Asked Questions, Family Law Property – Frequently Asked Questions, Family Law Property, Divorce, Child Support and our Articles sections.