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Parenting

Evolve Legal - Parenting

Parenting

Parenting Orders are a formal record of the terms of a parenting agreement reached between parents. These can be helpful where a formal framework is needed to make binding orders to ensure compliance from both parents.

Parenting plans are another way to formalise a parenting agreement. Parenting plans are different from parenting orders because they are informal, flexible, and unenforceable. Family dispute resolution is a compulsory process (in most situations) that facilitates dispute resolution outside of the court system with the assistance of a neutral third party. There are many advantages of family dispute resolution, including the impartial, informal, and inexpensive nature of the procedure – however it is important to note that any agreement reached will not be legally binding, unless the parties engage in consent orders or a financial agreement.

In regard to the rights of grandparents, the court recognises the importance of their role, and they are thus welcome to make an Application to the Court for Parenting Orders. Further, child support is an additional process by which a parent or non-parent carer may apply for an administrative assessment of child support to be paid by a parent for a child. This amount payable is based on actual costs of the children, the capacity of both parents to meet such costs and time the parents have with the child.

Child Support  

Child support is assessed by the Child Support Agency. It is an administrative process separate to parenting proceedings in the Federal Circuit and Family Court of Australia.
Under the Child Support Assessment Act, a parent or a non-parent carer of a child may apply for an administrative assessment of child support to be paid by a parent for a child. Parent is defined as including an adoptive parent and a parent of a child born by means of artificial conception.

An application may be made by phone to the Child Support Registrar, online through the Department of Human Services website or in writing by completing an “Application for Child Support Assessment” form. Once an application is accepted, the Child Support Registrar will send the parties a notice of child support assessment showing the amount assessed and how it was calculated. Child Support is assessed at an annual rate, payable monthly, and ends when the child turns 18 or becomes “a member of a couple” or on other terminating events such as adoption.

The formula used by the Child Support Agency to determine the amount of Child Support payable is based on the actual costs of the children and the capacity of both parents to meet those costs having regard to their respective incomes.

It is possible to enter into a private arrangement for Child Support so long as both parties consent to the terms. The agreement must be made in writing and will only be enforceable if both parties have had legal advice. The child support payable under the agreement may be any amount, so long as it is by agreement between the parties.

Parenting Orders  

When a relationship breaks down, it is a difficult time for everyone involved. It is even harder when there are children involved as parents need to negotiate the arrangements that are in the best interests of the children.

There are a couple of ways to formalise a parenting agreement reached between parents, one of them by entering into a Parenting Order (Consent Order). This is a formal record of the terms of the agreement reached in relation to the children, which is filed with the Court and issued as a formal Court Order. There are heavy penalties if you breach a Parenting Order, which can even include imprisonment in severe cases.

Parenting Orders can incorporate such matters as:

  1. The ability for each parent to make long-term (parental responsibility) and short term (day to day) decisions in relation to the children;
  2. The time the children spend with each parent;
  3. The location that parents meet for the children to change between parents;
  4. How the parents communicate with each other;
  5. How the children communicate with the parent they are not staying with; and
  6. How the children can travel interstate and overseas with each parent.

Parenting Orders can be helpful when parents require the formal framework, and the enforceable nature of the Orders, where there is volatility between parents or when one parents has concerns that the other parent may not abide by the terms of their agreement or they simply need the threat of Court to keep one parent complying with the terms of the agreement reached.

Parenting Orders provide a formal framework for parent to work within, with the intention being that parents will eventually be able to work together (co-parent) with each other for the sake of the children. It is best to obtain some advice from a properly qualified family lawyer about the best option for your particular circumstances.

Parenting Plans  

Another way to formalise a parenting agreement reached between parents is to enter into a Parenting Plan. What to put in a parenting plan – Like a Consent Order, a Parenting Plan can incorporate the same arrangements as reflected above under the Parenting Orders section.

The main differences between a Parenting Order and a Parenting Plan is:

  1. The informal nature of the Parenting Plan; and
    A parenting plan allows for a certain amount of flexibility between parents and is often used when parents initially separate and are trying to work out what arrangements will be in the children’s best interests. A parenting plan can be a more practical way of setting out the arrangements when it is too early to formalise an agreement in a Parenting Order, when the parents are trialling a particular time arrangement or when one parent does not have certainty with their work arrangements and requires that flexibility to change the arrangements periodically.
  2. A parenting plan is not enforceable.
    A Parenting Plan is simply a record of the intentions of the parents at the time they entered into the Parenting Plan and cannot be enforced against them like a Parenting Order can. If you breach a Parenting Plan there is no formal penalty for doing so like there is with a Consent Order.

Often parents will enter into a Parenting Plan in the early stages of their separation, until they have resolved the arrangements that best suit their particular circumstances and decide to enter into Parenting Orders. It is best to obtain some advice from a properly qualified family lawyer about the best option for your particular circumstances.

Grandparents  

Grandparents rights in Australia: how can grandparents get visitation rights?
Often in a separation, especially in high conflict matters, one parent will withhold time between the children and the Grandparents of their former spouse. Consequently, a previously loving relationship can suffer through no fault of the Grandparents.

The Family Law Act recognises the importance of the role that Grandparents play in children’s lives and the impact a separation can have on that relationship. As a result, s60B of the Family Law Act has specifically included reference to children having a right to spend regular time with and communicate with Grandparents, as long as it is in the children’s best interests.

It is therefore open to Grandparents to make an Application to the Court for Parenting Orders if they wish to spend time with their grandchildren.

It is not a given that children will automatically be granted time to spend with their Grandparents, as it will depend on the nature of their relationship with the Grandchildren prior to separation. If the Grandchildren were estranged from their Grandparents prior to separation by reason that both parents had decided they do not wish for the children to have a relationship with the Grandparents, then the Court may not make Orders for any time to happen. Every case is different and will be determined on its own fact and circumstances at the time, so it is important to obtain advice at an early stage from a qualified family lawyer.

Family Dispute Resolution  

Often families going through a separation do not know where to start when it comes to resolving their disputes. Family Dispute Resolution can assist with this process to help families come to agreement without going to Court.

A Family Dispute Resolution Practitioner is an independent person who will assist parents to look at various options in order to resolve any disputes that have arisen during their separation. Types of disputes that Family Dispute Resolution Practitioners can assist with are not only parenting matters, but also financial matters. Parents also have the option of attending with a private family dispute resolution practitioner or through a government family dispute resolution centre.
If families can come to agreement, then any parenting agreement can be formalised through a Parenting Plan or Consent Orders for parenting matters (see above). Where parents have resolved both their financial and parenting matters, they can be formalised through Consent Orders.

The law recognises that Court proceedings are not good for separating families and encourages families to resolve their disputes (especially when it comes to parenting disputes) before taking that step. Family dispute resolution is a necessary step for parents to take before they commence Court proceedings (unless there are urgent matters that need to be determined, where an exemption is available), so that hopefully they can resolve their issues without the need for Court intervention.

If parents have attended family dispute resolution, and they were unable to successfully resolve their dispute, the Family Dispute Resolution Practitioner will issue them with a section 60i certificate which allows parents to commence Court proceedings in relation to parenting matters.

It is important to speak with a qualified family lawyer who can assist you with knowing who to approach.

Relocation & travel  

If you seek to relocate and take your child or children with you, then you need the permission of the other parent to do so.

The purpose of the Family Law Act, except in genuine cases of violence or child abuse, is to see that children have the benefit of both parents having a meaningful involvement in their lives, and that parental responsibility is equally shared. Parental responsibility means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children. Parents are legally responsible for their children until a parenting order or plan provides otherwise. The court will apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for a child’, unless the presumption can be rebutted (for example, on grounds of family violence or child abuse). Where a child lives is a long-term decision that should be made by both parents in the exercise of their joint parental responsibility.

Family law courts can only make an order that your child or children remain where they are because relocation is not in the child or child’s best interests and would affect the time the child or children can spend with their other parent. On the other hand, the court is able to grant a relocation order if it is in the child’s best interests to do so. The reality is that the family court is unable to make an order that a parent not relocate to a new city, state or country as you have a constitutional right to be autonomous and live wherever you want.

If the other parent opposes the relocation, then you can make an application to the court for a parenting order which can make provision for the child or children to relocate. In determining whether to make a relocation order, the court will have regard to the following factors:

  • The express view of the child and whether they want to move (provided that the child is old and mature enough to understand the situation).
  • The nature of the relationship between the child and both parents.
  • How the move would impact upon the child having a meaningful relationship with both parents.
  • How the move will impact a child’s education and extra-curricular activities.
  • How far away the parent is proposing to move.
  • How the proposed relocation will impact on the child’s friendships and other relationships.

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