Solving Parenting Issues after Separation
There are many difficult decisions to be faced following separation, the most difficult of those decisions will probably be who the children will live and how much time they will spend with each parent.
In rare occasions these decisions will be made amicably and with little fuss, however with emotions running high, legal intervention is often required to settle disputes.
The level of intervention that parties might require will depend greatly on their ability to communicate with each other.
A parenting plan is a written agreement with respect to the parenting arrangements for your children post separation. This type of agreement typically works best where the parties remain amicable and simply want their agreement in writing.
The terms of a parenting plan are decided jointly between the parties and although the document may be drafted by a solicitor, it does not involve going to court.
Although a Parenting Plan is not legally enforceable, if your matter proceeds to court, the court will consider the terms of the most recent Parenting Plan when making parenting orders.
A Consent Order is a written agreement that is approved by a court. Consent Orders are made by filing an application with the court setting out in detail the proposed orders that you are asking the court to make. The Court will only make the orders requested if it is satisfied that the orders you ask for are in the best interests of the child or children involved.
Like Parenting Plans, when seeking Consent Orders, neither party is required to attend court. As the terms of the agreement are already agreed if the court approves the application your proposed orders will be made. Once the Orders have been made, they have the same legal effect as if they had been made by a judicial officer after a court hearing and are legally enforceable.
Parenting Orders can be sought by any person concerned with the care, welfare and development of a child. They are obtained by commencing proceedings in either the Federal Circuit Court or Family Court of Australia.
The Family Law Act provides strict guidelines for the court to consider when determining parenting matters. Section 60CA prescribes that the ‘best interests of the child’ must always be the primary consideration.
The starting point for the court’s decision-making process is the presumption of ‘shared parental responsibility’. The Family Law Act asserts a presumption that it is in the best interests of a child for his/her parents to have ‘equal shared parental responsibility’. This presumption may however be rebutted and in the circumstances of an individual case, the court may decide that shared parental responsibility is not appropriate.
Equal shared parental responsibility means that all major long-term decisions relating to issues such as education, religion and healthcare are made jointly between the parents.
Shared parental responsibility does not include day to day decisions such as what a child wears or how their hair is cut.
Equal shared parental responsibility is different to a child spending equal time with both parents. If the court decides that the parents should have equal shared parental responsibility, it must then consider whether the child spending equal time with each parent would be in the child’s best interests and whether it is reasonably practical.
Substantial and significant time
Where equal time is not appropriate, the court must look at whether an order for substantial and significant time is in the best interests of the child as a practical alternative. ‘Substantial and significant time’ means that the child spends time with the non-resident parent on weekends, holidays and weekdays so that the opportunity exists for time to be spent together in daily routine activities and also for events that are important to the child such as sporting events, birthdays and school activities.
How final are Final Orders?
Although when final parenting orders are made they are generally considered to be final, there are certain circumstances where the court will consider revisiting the matter.
The principle commonly referred to as the rule in Rice & Asplund, relates to a decision of the Full Court in 1979. The rule established from that case stipulates that a matter can only be brought back before the court if you are able to establish that there has been a significant change in circumstances from those that existed at the time the original parenting orders were made. If a party to proceedings is able to establish a change in circumstances the matter may be able to be revisited.
Call our expert family lawyers at Williams Barristers and Solicitors for clear and practical advice through these difficult emotional and legal processes.
Call 08 84519040