A marriage or relationship breakdown is a very stressful and emotional experience for the adults involved but it is also a very difficult time for the children of the relationship. It is important to prioritise the needs of the children after a relationship breakdown to ensure a sense of stability and security for them.
Can we make our own agreement without going to court?If you and the other parent are able to reach an agreement about what arrangements will be in place for your children without going to court, then this is the best outcome for everyone involved as it will save considerable time, stress and money. At Owen Hodge Lawyers we are committed to assisting our clients to negotiate or mediate with the other parent to try to reach an agreement without having to go to court, and we can actively assist and support you throughout this process. If you and the other parent are able to reach your own agreement then we can also prepare the documents you can sign to make your agreement final and binding. These documents are called an Application for Consent Orders and Consent Orders. Once these documents are signed by you and the other parent (and they are approved by the court) they have the same force and effect as if they were made by a judge following court proceedings.
What if we can’t reach an agreement outside of court?Unfortunately, and often despite the best intentions of the parents, it is not always possible for parents to reach an agreement about arrangements for their children without the assistance of the court. The court has the power to deal with all issues relating to child custody including where the children live and what time they spend with each parent. Either of the parents can make an application to the court seeking orders about their children regardless of whether they are married or in a de facto or same sex relationship. It is also not only the parents of a child who can make an application to the court. Grandparents or any other person concerned with the care or welfare of the child can make an application to the court for parenting orders.
What is the Process of Applying to the court for a Parenting Order?As from 1 July 2007 a new legislative provision also came into force which makes it mandatory for parents to engage in mediation with an accredited Family Dispute Resolution Practitioner to try to resolve their parenting dispute before making an application to court. Until a parent attends mediation and obtains a section 60I certificate from a Family Dispute Resolution Practitioner they will be unable to file an application with the court seeking parenting orders. There are some exceptions to the requirement for parents to engage in mediation including in circumstances of urgency or if there is family violence or abuse. It is also possible to obtain a s60I certificate if the other parent is invited to participate in mediation with you and they refuse to do so. When you file an application with the court you can ask the court to make interim and final parenting orders or just final parenting orders.
What are interim orders?Interim orders refer to temporary orders that are in place until the court makes a final decision about what arrangements should be in place for your children, or until you and the other party reach a final agreement. Some examples of when you might choose to apply to the court for interim orders are as follows;
There are also numerous other circumstances when it would be appropriate to seek interim orders. Generally interim orders are sought when there is an urgent issue in your matter that needs to be resolved as soon as possible. An interim hearing will usually take place within one to three months of an application being made to the court. At an interim hearing the judge will read written statements (Affidavits) that both parties have submitted to the court and then the judge will listen to arguments (submissions) from the legal representatives or the parties themselves if they do not have a lawyer. After considering the Affidavits and the submissions the judge will then make a decision about what temporary orders should be in place. Ordinarily you and the other party are no able to give any sworn oral evidence at an interim hearing and because of this the judge is not in a position to get to the bottom of all the issues at this stage of the proceedings, therefore the judge may make a different decision following a final hearing.
- The other party will not allow you to spend any time with the children; or
- The other party will not allow you to spend adequate time with the children.
What are final orders?The final hearing usually happens within a year of a party making an application to the court. At a final hearing any person who has provided an Affidavit to the court will usually give sworn oral evidence in court, and each of these people will usually be cross examined about what they have said in their Affidavit. This is an opportunity for the judge to get to the bottom of the issues and make a decision about who is telling the truth. The judge will also consider a report that is prepared by a court appointed counsellor, psychologist or psychiatrist who has met with the parties before the final hearing, and this expert is usually also cross examined in court. At the end of the final hearing the judge will also hear oral submissions from each party’s legal representative or from the parties themselves if they don’t have a legal representative. Following a final hearing the judge will make final orders about what arrangements will be in place for the children until they are 18 years old.
How does the court make a decision?When deciding what parentings orders to make the court applies the principles in the Family Law Act 1975, and an overview of these principles are as follows;
Equal shared parental responsibilityThere is a presumption at law that after separation both parents have “equal shared parental responsibility” for their children. The term “equal shared parental responsibility” means that both parents have equal input into decisions that affect the long term care, welfare and development of the child. For example parents should consult and make decisions together about what school their child attends or what medical treatment the child receives. The presumption that the parents have equal shared parental responsibility can be rejected if the court is satisfied that this is not in the child’s best interests. The court may form this view in matters that involve violence, abuse, neglect or if one parent is incapable of parenting a child. In these circumstances the court may make an order for one parent to have sole parental responsibility which enables that parent to make decisions about the child’s long term care, welfare and development on their own and without consulting the other parent. Unless the presumption of equal shared parental responsibility is rejected then the court must consider the children spending equal time with each parent or an arrangement where the children spend significant and substantial time with each parent. An example of an equal time arrangement is the children spending one week with one parent and the next week with the other parent on a rotating basis. An equal time arrangement does not have to be structured in this way, and it may involve shorter block periods with each parent. “Significant and substantial time” means a combination of weekend, holiday and weekday time. One of the aims of the law is to ensure that each parent has an opportunity to be part of the child’s daily routine as well as sharing special occasions and “fun” times with their children. In deciding whether to make an order for equal time or significant and substantial time the court’s primary focus is ensuring that the arrangement is in the best interests of the children, and whether or not it is reasonably practicable for the children to spend either equal time or significant and substantial time with the parents.
How does the court determine what is in the children’s best interests?Section 60CC of the Family Law Act 1975 sets out what factors the court is bound to consider when deciding what arrangements are in the best interests of the child. There is a two–tiered system of ascertaining what is in the best interests of the child including “primary” and “additional” considerations, which are summarised as follows; Primary considerations:
- The benefit to the child of having a meaningful relationship with both parents;
- The need to protect the child from physical and psychological harm;
- Any views expressed by the child;
- The nature of the child’s relationship with each parent and any other persons (including grandparents or other relatives of the child);
- The extent to which each parent has taken or failed to take the opportunity to spend time with the child, communicate with the child or participate in making major long term decisions about the child;
- The extent to which each of the child’s parents have fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
- The likely effect of any change in the child’s circumstances;
- The practical difficulties and expense of a child spending time with and communicating with a parent;
- The capacity of each parent to provide for the child’s needs (both intellectually and emotionally);
- The maturity, sex, lifestyle and background of the child and the parents;
- If the child is an Aboriginal child or Torres Strait Islander child;
- The attitude to the child and to the responsibility of parenthood demonstrated by each parent;
- Any family violence involving the child or a member of the child’s family;
- Any AVO or ADVO that is currently in place in respect to the child or any member of the child’s family;
- Any other fact or circumstance that the Court thinks is relevant.
- How far apart the parents live from each other.
- The parent’s current and future capacity to implement an arrangement whereby the child spends equal time or substantial and significant time with each parent.
- The parents’ current and future capacity to communicate with each other, and resolve difficulties that might arise in implementing the arrangement.
- The impact that the equal time or substantial and significant time arrangement would have on the child or children.
- Any other matter the court considers relevant.
What other specific matters can the court deal with?The court has the power to make orders in relation to a numerous issues relating to children when the parents cannot reach a agreement themselves, and some of the common issues are as follows;
- When one parent wants to relocate with the child interstate, overseas or a significant distance from the other parent.
- When one parent wants to take the child on an overseas holiday or obtain a passport for the child.
- When one parent abducts or does not return the child to the other parent.
- When one parent does not follow (breaches) court orders that are in place in relation to a child.