Separation and divorce can cause major disruption to your children’s lives. You and your spouse can minimise this disruption by communicating and cooperating with each other and your children throughout the process and in the long term.
There are essentially four ways parenting arrangements can be made:
- Informal Agreements
- Parenting Plans
- Consent Orders
- Court Orders
There are also Emergency Orders that can be obtained in certain circumstances.
Every family’s circumstances are different and there are long-term legal consequences to be considered in making parenting arrangements. Each option has its advantages and disadvantages. Many separated parents are able to co-operate with their ex-spouses and enjoy the flexibility of Informal Agreements. Others prefer the certainty that enforceable Consent Orders create. We strongly recommend that you seek legal advice if you have children and are considering separation.
Informal agreements involve separated parents working co-operatively with each other to jointly make decisions concerning their children’s day-to-day lives, as well as making decisions of a significant long-term nature. These agreements do not need to be formalised into a written document. Informal Agreements work best where there is a level of trust between the parents regarding the parenting of their children because they are not enforceable by the Courts. If they should break down or are not complied with, it might be necessary to apply for formal Court Orders to re-establish parenting arrangements.
Parenting Plans are similar to Informal Agreements in that they are agreements reached between separated parents, but they are formalised into written documents and signed by both parents. They might also include arrangements about how your children should spend time with their grandparents and other significant people in your children’s lives. However, as with Informal Agreements, Parenting Plans are not enforceable in the Courts and rely upon the co-operation of the separated parents to work together effectively.
Consent Orders are agreements reached between parents that are formalised into written documents. As Consent Orders are more formal in nature there are requirements in the way they are drafted. Generally, Consent Orders can cover most issues covered by Informal Agreements and Parenting Plans. They can be as prescriptive as your circumstances require. Once signed by both parents, the Orders are forwarded to the Family Court for approval. In most cases this does not require the need for the parents to attend the Court for the Orders to be made. Consent Orders provide certainty and are enforceable by the court if a breach by either party occurs. Legal advice should always be sought before signing Consent Orders as they are legally binding and serious consequences flow from breaches of them.
Court Orders are made by the Court after a formal, contested hearing. The law dealing with children’s living arrangements is the Family Law Act 1975. Other than in certain limited cases (involving urgency and/or issues of family violence), the law requires any party considering applying to the Courts for Parenting Orders (other than Consent Orders) to attend mediation first. Section 60I Certificate from an accredited Family Dispute Resolution Practitioner must be filed with the Court at the time of making an application for Parenting Orders to prove that mediation has been attempted.
The process then involves each parent filing an application containing the orders they seek as well as a Section 60I Mediator’s Certificate (unless an exemption applies). Next the dispute has to be set down for a formal hearing. It is usual for each parent to be represented by a solicitor and barrister. The court may also order that the children are to be represented by a separately appointed solicitor and/or barrister known as an Independent Children’s Lawyer. Court Orders after a contested Court hearing are legally binding and serious consequences flow from or breaches of them.
There are few benefits to parenting arrangements being made in this way. While courts are required to consider equal shared parental responsibility and equal time with the child, not everyone’s personal circumstances allow for this. Unfortunately, this means a stranger – a Judge or Federal Magistrate – will decide what arrangements will be made for your children, with the information they have gathered about your situation in the limited time you spend in their courtroom. There is also likely to be significant delay between the filing of the Court Application and the hearing. The hearing process, being adversarial in nature, is likely to aggravate any existing issues between the parents and could easily create new ones. The costs of Family Court proceedings are likely to be very significant.
Unfortunately it is common for agreements between parties to be breached. Common concerns include: ‘the other parent has failed to return my child’, ‘I am worried that the other parent will remove my child from Australia’, ‘the other parent has relocated and I have no idea where they are’, ‘the other parent refuses to make the child available when I am meant to spend time with them’ and ‘I am worried about the safety of my child while in the care of the other parent’. At times parents may have already contacted the local police who may not be able to assist without a court order. If you are faced with any of the mentioned situations, contact a family law solicitor promptly as action needs to be taken and documents need to be prepared quickly and correctly.
In circumstances where a child has been removed from a parent or a parent has refused to return a child you will need a lawyer to file and obtain an urgent recovery order. Essentially the court will be asked to make an order which will enable the local police to physically take custody of the child and return the child. If done promptly and efficiently, the child can be reunited with their parent within a few days.
If the other parent is trying to remove the child from the country your family lawyer can have the child placed on the airport watch list. Once a child is removed from Australia, a parents ability to recover the child is severely restricted. There are countries where there is nothing a parent can do. If you contact a family lawyer early enough, having your child placed on the airport watch list ensures that your child is unable to leave any airport in Australia without being removed or a further court order. It is possible to make these arrangements outside of business hours and the child will be placed on the list within 24 hours.
In the situation where the other parent relocates interstate or simply disappears with the child and you have tried contacting the other parent, the school, police, family and friends to no avail, it may be necessary to seek a location order. This is an order authorising government agencies to release information to enable you to locate the parent and the child. Normally the child would have enrolled in a new school or had their Centrelink details updated by the other parent. This information is then used to take further legal action such as a recovery order.
If the other parent refuses to make the child available to spend time with you, you may be able to file an urgent contravention application. It is used for an application alleging a breach of a parenting order. If you don’t actually want the other party punished (e.g. fined or imprisoned) for the breach but rather want a speedy remedy to ensure the resumption of the arrangements set out in an earlier order, you may be able to file an Application in a Case rather than an Application – Contravention. You should seek legal advice before filing an Application – Contravention.