Once you separate deciding on parenting and child custody arrangements is crucial. In our experience it is preferable to have a set agreement in place early on, rather than an informal arrangement, so that both parents and the children know what the routine will be.
The aim is always coming up with something that is in the best interests of the children. If an agreement is reached then this should be in writing.
An agreement in writing can either be in a Parenting Plan or Consent Orders. This is something that you can work on with your child custody lawyer and once agreed shows the agreement in place that clearly sets out how the children spend their time. Common topics that are covered include:
The law does not tell you as parents how to parent your child neither does it give more importance to one parent over the other. Whether your family is together or you are separating you have an obligation to make arrangements that are in the best interests of your child.
The approach that we take is to ensure that whatever agreement you reach is future proofed as best as possible.
These are informal agreements that can be reached in private between you. These are non-binding but set out the children’s arrangements. The benefit of these plans are that they are flexible and work best for parents who just want something in place that can be changed down the track if they need.
It is also possible to make a parenting plan after a Court order that varies the previous order. Flexibility is key in these plans.
These are more formal and once they are finalised have the full powers of a Court order under the Family Law Act. These give each party a clear understanding of the time the children spend with each parent and must be followed.
A Parenting Order is something that can be ordered by the Court after litigation by a Judge or, in most cases, is something that is granted following an amicable application being filed with the Court. It does not matter how the order is obtained, once it is stamped by the Court it is binding and must be followed.
A parenting order can be obtained by consent, by both parents submitting an agreed set of orders and an application to the Family Court or by one person making an application to the Court.
Following a Court application being made there are two types of orders that can then be made:
Interim Orders are given by the court until the matter can be heard in full or until a later hearing date. They are not the final order and they can be amended at a later date by the court. If you are dissatisfied by the interim order then you should obtain legal advice as to how you can have your order amended.
These are orders given by the court either by consent of the parents or after a court hearing that concludes the matter. Once the order is final changes cannot be made unless there are circumstances that change making this appropriate.
If you and the other parent agree about the orders you would like for your children you can jointly submit an application to the Federal Circuit Family Court of Australia (family court). This application will be considered by a Registrar to ensure that the orders are practical and in the best interests of your children.
If the Registrar deems they are suitable then you will receive a stamped copy back from the family court.
Where no agreement can be reached the Family Law Act will usually require at least one parent to attempt to go to mediation with the other. Where agreement cannot be reached, or one parent does not wish to attend mediation, then a certificate, called a section 60I certificate, will be issued to allow the parent to make a family Court application.
The next step is then filing an application and supporting affidavit material with the family court and this is done by drafting the document in consultation with your child custody lawyer. The orders you are seeking will need to be precise and to outline what you are specifically looking for.
The family court will always look at what are is in the best interests of the child when determining a court order. They will consider all the relevant information presented by the parties including the child in their decision. This decision is typically final and can be costly process to amend or appeal. Having the right legal advice and representation for you is vital so that your case is presented properly and you are defended from the accusations or representations from the other parent. We will give you practical and real guidance about how best to present your case to give you the best chance for your child.
Legal Advice in family matters is mostly personal and our advice not only relates to the facts of the matter, but on how to improve your chances of reaching your desired outcome. These are often practical steps that you need to take to improve your chances of success. We work with you to pre-empt issues, negate counter arguments and carefully respond to any accusations so that your case is exhaustive and well presented to the court and at mediations.
There are a range of different specific issues that parenting orders cover and they are as follows:
This refers to the decision making about a child. Both parties begin with joint parental responsibility to act in the best interests of the child, however the court can divide that responsibility. It can also address specific issues that are disputed such as which parents is responsible for the child’s schooling or religion
These orders outline who the child is to live with and they can specify the cycle of time. For example an equal parenting arrangement is usually described as a week about arrangement where the child lives with one parent each week.
These orders to outline how much time a child can spend with their parent and can cover school holidays, time on special days such as birthdays and so on. This type of order is made where the child lives with one parent and spends time with the other, for example, each second weekend.
This addresses how the children are to move between one parent and another, which may be simple however in other cases the parents may not wish to be in contact with each other so school, contact centres, police stations or other venues are stipulated.
This type of order outlines how the child will communicate with the other parent they are not living with.
These issues can be addressed in parenting orders to resolve the conflict between the parties. This can include what the child is allowed to do in relation to public transport. School and activities that the child is involved in can be addressed in a parenting order as well.
A parenting order can specify what travel arrangements and consent is required for a child to travel interstate or overseas.
Courts can make it clear whether the consent of both parents is required for a child to obtain a passport.
If you have concerns about the other parent taking the child overseas then you should contact our family law team today as an urgent airport watch list order might be necessary to prevent any overseas travel.
There are other issues that you are relevant to your family and can also be addressed in a court order.
A parenting order will make the arrangement between the parties legally enforceable and clarify the legal obligations of each parent. This can relied upon if police or other agencies are called and also to set out obligations for decision making in relation to medical, travel, living and some financial arrangements. It also provides consequences for An order cannot pre-empt all future issues that may arise and can be reviewed and amended in the future by the parenting agreement or another order.
If a party breaches the court order then you will have recourse against the other parent. This is important where one parent may not be reliable or may help to keep the peace if issues are disputed.
There are many types of custody arrangements that fathers and mothers can decide upon to suit their families’ unique circumstances as a consequence of divorce or separation. There can be 50/50 custody or other combinations of time and responsibilities split between the parents. Cases where someone is seeking to obtain full custody of a child can be more difficult to obtain in some situations than if you were seeking to have a shared custody or will be co-parenting. There may be circumstances where full custody may be in the best interests of the child, however obtaining such an order is generally reserved for special circumstances.
In such disputed custody cases our family lawyers carefully analyse and deconstruct the argument of the other side and present your case to the court in the best possible light. We have had excellent outcomes in obtaining positive results for our clients in difficult situations with low chances of success.
Parenting orders can also contain injunctions and they stop people doing certain behaviours. An example of behaviour that can be restrained would be remaining at a venue after delivering the child at changeover or allowing the child to be in the presence of a certain person.
Commonly, where use of alcohol or illicit drugs is involved, the Court will impose a restraint on a parent to prevent these behaviours. The Court can also make other orders that, for example, require supervised urine drug screens to be undertaken.
As orders cannot cover all future events a situation may arise where an order needs to be varied. This is done if the parties disagree, circumstances change or if they otherwise agree it may be appropriate to enter into a revised parenting arrangement. If you are unsure we can assist you with providing advice on how best to achieve the right results for you and your family.
There are many remedies for contraventions of an order. The Federal Circuit Family Court of Australia (family court) takes the making of its orders seriously and is not impressed when one parent chooses to unreasonably contravene, or breach, a family court order.
If you are aggrieved by one parents behaviour and their disregard for family court orders then you should obtain legal advice from an child custody family lawyer as soon as possible. It is better to be seen to be proactive rather than complacent and action should be taken as soon as possible.
Following an application being made the court may decide if a person has intentionally disobeyed an order or makes no effort to comply with an order that a penalty may apply. The penalties available to the court include:
There are instances where a reasonable excuse is a defence for not complying with a parenting order. It is important in these instances to have the right advice from experienced family lawyers who can assist you in applying for enforcement of orders or defending a claim.
Legal matters involving children often have a great deal of emotion involved with subjective opinions, especially in disputes, and the family court will always look to the best interests of the child in deciding these matters.
Our philosophy in parenting matters revolves around two key words: insight and practicality. We are experienced family lawyers and understand the process thoroughly and will advise you through the lens of our experience in the family court and the law.
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