Parenting Orders

A parenting order is a legally binding decision made by a court that outlines the arrangements for the care, welfare, and development of a child or children following their parents’ separation or divorce.

The Family Law Act 1975 (Cth) provides a legal framework for parenting arrangements, with the child’s best interests as the paramount consideration.

Parenting orders can address a wide array of arrangements, including:

• Living arrangements: Who the child will live with.

• Time spent with each parent: How much time the child will spend with each parent and possibly other significant individuals such as grandparents.

• Parental responsibility: The allocation of parental responsibility, which can be shared or allocated to one parent.

• Communication: How the child will communicate with the parent they do not live with or other significant people.

• Other aspects: Any other aspect of the child’s care, welfare, or development, including education, religion, and health decisions.

A parenting order can be established in two ways:

1. Consent Orders: When both parties reach an agreement on the parenting arrangements without needing a trial, the court formalises the agreement, making it legally binding.

2. Court Orders: If parties cannot agree, the matter may proceed to a hearing or trial, after which the court will decide based on the evidence presented and in the child’s best interests.

Once a parenting order is in place, all parties affected must comply with its terms legally. This includes adhering to the specific arrangements outlined and taking positive steps to facilitate these arrangements and encourage the child to comply. Failure to follow a parenting order can lead to legal consequences, including penalties for removing a child from Australia without proper consent or court approval.

While a parenting order is designed to be permanent until the child reaches adulthood, it recognises that circumstances can change. Modifications to the order can be made through:

• Parenting Plans: If both parties agree to new arrangements, they can enter into a parenting plan. While less formal and not legally enforceable, a parenting plan can reflect the new agreed terms.

• Applying for New Orders: To formally change a parenting order, parties can apply for new consent orders or, if agreement cannot be reached, may need to return to court for a variation of the original order.

Before applying to the court for changes to a parenting order, parties are generally required to attempt resolution family dispute resolution. This process aims to help parties resolve their differences outside of court, saving time, money, and emotional stress. Only if dispute resolution is unsuccessful or inappropriate (e.g., in cases of family violence) can an application to change a parenting order be made to the court.

A consent order differs slightly from a parenting order in that it is based on the consent, or agreement of both parties. It outlines what must be done, and is formalised by the court.

A parenting plan focuses on the parenting and care arrangements for their children. It is designed to outline how both parents will continue to provide support and make decisions for their children’s well-being, despite no longer being in a relationship. This plan can cover a wide range of topics, including living arrangements, health care, education, and how disputes will be resolved.

The main difference between a parenting order and a parenting plan is that a parenting order is court-enforced, while a parenting plan is an out-of-court agreement.

Parenting plans offer a flexible and informal approach to setting out parenting arrangements. This flexibility allows parents to tailor the plan to their family’s specific needs and adjust it as circumstances change without going back to court.

While there is no strict legal format that a parenting plan must follow, it is highly recommended that the plan is in written form rather than verbal. A written plan ensures clarity and reduces misunderstandings between parents about their agreements.

A parenting plan must be recognised by both parents, who must sign and date it. This signifies that both parties have agreed to the terms set out in the plan.

Creating a parenting plan is generally less costly and less stressful than legal proceedings for obtaining a parenting order. Many community-based family support services provide dispute resolution assistance and may offer templates or examples of parenting plans.

Parenting plans can be revised and updated anytime, provided both parents agree. A new plan should be written, signed, and dated, reflecting the current agreements.

Keep in mind that while parenting plans themselves are not legally enforceable, if there are existing parenting or consent orders in place, a subsequent parenting plan can modify the terms of those orders. However, this modification only applies to the extent that the parenting plan alters the original orders, making those particular terms unenforceable unless the court order explicitly states a parenting plan cannot vary it.

Parents considering modifying legally binding orders through a parenting plan should seek legal advice to understand the implications fully.

In cases where parents later decide to apply for a court-issued parenting order after creating a parenting plan, the court will consider the plan. Although the court is not bound to follow the parenting plan, it serves as evidence of the parents’ intentions and agreements regarding the care of their children at the time it was made.

Although not legally required, seeking legal advice before finalising a parenting plan is prudent. Legal advice can help ensure that the plan adequately covers all necessary care areas for the children and can advise on potential future legal implications.

Applying for a parenting order in Australia is a structured process governed by the Family Law Act 1975 (Cth). It involves several stages designed to encourage parents to resolve their disputes amicably, if possible, before resorting to court intervention.

To begin with, a parenting order is a legal document issued by the court that sets out the responsibilities of each parent regarding the care, welfare, and development of their children following a separation or divorce. Parenting orders can cover various aspects, such as who the child will live with, spend time with, and communicate with, as well as specific matters like schooling and healthcare decisions.

Before applying for a parenting order, you must engage in pre-action procedures, including attendance at a Family Dispute Resolution (FDR) conference. The aim of such a conference is to help parents resolve their parenting issues without needing to go to court. These steps are mandatory unless your situation involves urgency, family violence, or child abuse, in which case exemptions may apply.

As part of the pre-action procedures, you must attempt family dispute resolution with a registered FDR practitioner. If the dispute cannot be resolved through FDR, the practitioner will issue a Section 60I certificate. This certificate is required when filing your application for a parenting order and confirms that an attempt at FDR was made.

Once you have the Section 60I certificate (or qualify for an exemption), you can proceed to file your application for a parenting order with the Family Court or Federal Circuit Court. The application must include:

• An initiating application form detailing the orders you are seeking.
• A copy of the Section 60I certificate or details of the exemption claimed.
• An affidavit supporting your application, outlining the facts of your case and why the orders you are seeking are in the best interests of the child.

Given the complexity of family law and the potential impacts of parenting orders on your rights and responsibilities as a parent, it is highly recommended that you find professional legal advice before commencing the application process. A family law solicitor can provide guidance on the most appropriate course of action, help you prepare your application and supporting documents, and represent you throughout the court process.

After filing, the court will set a date for a hearing where both parties can present their case. The court will consider all evidence and submissions before making a decision. The primary consideration is always the best interests of the child.

While it’s technically possible to navigate this process without the assistance of a lawyer, legal advice is beneficial and often necessary.

For starters, the Australian family law system can be complex and difficult for laypersons to navigate effectively. A family law specialist has the knowledge and experience to guide you through the court procedures, ensuring all necessary documentation is correctly prepared and submitted. This expertise is invaluable in avoiding common pitfalls that can delay or complicate the process.

Other reasons you should talk to a lawyer include:

Best Interests of the Child
The child’s best interests are a paramount consideration in any parenting order. A lawyer can help ensure that the arrangements proposed in the order are in line with this principle, as defined by the Family Law Act 1975. They can also advise how courts typically interpret the child’s best interests in various circumstances, helping to shape proposals that are more likely to be accepted by the court.

Understanding Rights and Responsibilities
You must fully understand your rights and responsibilities under a parenting order. Legal advice can clarify what the order will mean for you and your children in practical terms, including any limitations it may impose on your actions or compliance requirements. Understanding these aspects before agreeing to an order can prevent unintentional breaches and potential legal consequences.

Situations Requiring Legal Advice
There are specific situations where legal advice becomes particularly crucial:

• Risk of Harm: If you or your children are at risk of harm, a lawyer can advise on the best action to protect your family’s safety, including seeking urgent court orders.

• Disagreements: If there is disagreement about the child’s best interests, a lawyer can help negotiate and mediate these issues, aiming for a resolution without contentious court battles.

• Parenting Plans and Consent Orders: Before signing a parenting plan or filing consent orders with the court, legal advice ensures you understand the implications and that the agreements are structured in a way that the court will likely approve.

• Court Proceedings: If you’re going to court to obtain a parenting order, representation by a lawyer can be essential in presenting your case effectively and advocating for your interests.

While engaging a lawyer when creating a parenting order is not mandatory, it ensures that your children’s legal arrangements are comprehensive, clear, and enforceable. This also helps to safeguard your rights and fulfill your responsibilities as a parent.

A parenting order is a legal document issued by the court that outlines the arrangements for the care and welfare of children following their parents’ separation or divorce. The specifics of a parenting order can vary significantly from case to case, and can include:

1. Where the Children Live: The order may specify the primary residence of the children and the logistics of living arrangements, including how time is divided between parents if there is shared custody.

2. Schooling and Childcare: Decisions regarding the children’s education, including the choice of school, attendance at special education programs if needed, and arrangements for before and after school care.

3. Time Spent with Each Parent: Detailed schedules for regular visits, holidays, and special occasions, ensuring that children maintain a meaningful relationship with both parents.

4. Medical Care: Arrangements for handling medical decisions, emergency healthcare, and ongoing treatments or therapies the children may require.

5. Religious and Cultural Practices: Guidelines on how the children will be raised in terms of religious observance and participation in cultural practices important to the family.

6. Parental Responsibility: Clarification on how major decisions affecting the children’s lives are made, including education, health, and religion, and whether these decisions are joint or assigned to one parent.

7. Communication Between Parents: Protocols for how parents will communicate with each other about the children’s needs, activities, and any issues that arise, promoting cooperation and reducing conflict.

When drafting a parenting plan that could later inform a parenting order, parents should also consider:

• Special Occasions: Agreement on how time with the children is divided for birthdays, holidays, and other significant family events.

• Maintaining Relationships: Arrangements for the children to maintain contact with extended family members, including grandparents, and the logistics of facilitating these relationships.

• Education and Extra-Curricular Activities: Decisions about the type of schooling, involvement in sports or hobbies, responsibilities for costs, and how parents will share or divide attendance at events and activities.

• Financial Support: How parents will share day-to-day expenses, educational costs, medical expenses, and handle financial emergencies related to the children.

• Parenting Decisions and Communication: How parents will make joint decisions, the frequency and format of parental meetings to discuss the children’s welfare, and agreed methods for resolving disagreements.

• Emergencies: A plan for handling emergencies, including who is contacted first and any relevant special medical information.

Given the detailed nature of parenting orders and the need to ensure they serve the children’s best interests, seeking professional legal advice is crucial.

Financial settlement, parenting orders, and child support are each their own separate legal matters. Parenting orders are submitted to the court and therefore deal only with parenting-related issues, and not child support.

There are several options for couples that seek to formalise their agreement when a relationship or marriage breaks down. Sometimes, parties can formally agree on how parenting time is to be divided, how a property sale is to be executed and the requisite funds distributed, or how other assets are to be distributed between the couple. These informal agreements can create headaches for both parties, because they are not legally binding.

A consent order could be requested for:

• A disagreement about the amount of financial support one party should be paying to the other. For example, if you completed renovations on the family home yourself, and your partner is attempting to claim over and above the reasonable amount from the sale of the former family home, you may be entitled to a consent order concerning payment of those monies.

• A disagreement about the dividing up of monies earned from the sale of the family home.

• A disagreement about sales of particularly high-value assets and how that money should be distributed.

• A disagreement about the division of parenting time between parents, when one party has applied for primary custody of the child, or when one party isn’t fulfilling parenting time obligations under a separation agreement.

When there is a significant disagreement, consent orders are necessary to bind a party to act in a particular way, pay an amount of money, or assume a particular amount of custody for a child. Consent orders can be made by petitioning a family court to create an enforceable consent order.

An alternative to a consent order is to enter into a “binding financial agreement”, which is an agreement that meets strict legal conditions under the Family Law Act of 1975.

For consent orders, it is generally good practice to submit an Application for Consent Order to the Family Court of Australia within 12 months of a divorce, or two years since the end of a de-facto relationship. Filing beyond this timeline could jeopardise the chances of your application being accepted.

Suppose you’ve been struggling to agree with a separated partner or divorced spouse about money, parenting, assets, or another matter. In that case, it may be time to consider petitioning for a court-ordered remedy to the dispute. It is worth noting that making changes to Consent Orders once a judge has ratified them is extremely difficult, barring an extreme change of circumstances.

At AJB Stevens, we understand the delicacies of involving the Family Court of Australia and our goal is to ensure our client’s interests are fairly and properly represented in any petition for Consent Orders.

Consent orders can be an important part of any formal separation or divorce proceeding. Although involving a Family Court is generally considered to be a less-than-desirable outcome for any separation or divorce, sometimes it is necessary to ensure that each party is treated fairly.

Here are a few benefits of applying for enforceable Consent Orders:

• They eliminate any misinterpretation of the needs and desires of either party involved in the dispute, as each party must agree on the content of the order before it is ratified by a judge.

• Consent orders present an opportunity for both parties to get clarity on their financial obligations following the termination of a relationship, particularly if complicated assets like property or shared bank accounts are concerned.

• Consent orders provide written documentation to present to a bank during the division of property from joint ownership to sole ownership, reducing the risk of confusion and the possible financial penalties that could arise as a result.

• They provide an indemnification from liabilities incurred during the relationship. For example, payment of insurance premiums following the transfer of ownership of a shared family vehicle.

• Consent orders provide you with an opportunity to articulate exactly what you want from the other party concerning finances, parenting arrangements and so on. And, as they are put together in direct consultation with legal advice, the emotion is taken out of the situation, allowing for a much less confrontational path forward.

• A final benefit of consent orders is that they allow you to get what you want from an ex-partner or spouse who may not be as forthcoming with their obligations concerning mortgage payments on a shared dwelling, or other financial obligations. If they aren’t meeting their obligations, then a consent order is one way to ensure that, at the very least, they’re bound by law to meet the bare minimum requirements.

At AJB Stevens, we understand that it can sometimes be tricky to advocate for yourself and/or your children following the dissolution of a long-term relationship or marriage. We know that nobody wants to take anyone to court. However, understanding the benefits that a consent order may have for you and your family is an important part of mitigating the difficult fallout of a divorce or legal separation.

Some, or all of the above benefits may apply to your case. If you’re having difficulty dealing with an unreasonable ex-partner or spouse, know that our team has your back and that consent orders may be exactly what you need to get what you want, or are owed by your former partner.

Knowing what a consent order includes, or doesn’t include, is an important step in understanding if a consent order is the proper tool for you to settle a dispute with an ex-partner or spouse.

What Can Be Included in a Consent Order?

• Parenting arrangements could be included in a consent order. For example, if one parent isn’t fulfilling the previously agreed upon custodial arrangements, at a detriment to the other parent’s ability to make a living, alternative custodial arrangements (such as single-parent custody) may be ordered by a consent order.

• The sharing of a property, or the responsibility for specific maintenance that must be performed on the property before it can be sold. Property includes all assets, from real estate to vehicles, furniture and more.

• Disagreements concerning superannuation payments, changes in payments of superannuation from splitting payments evenly into a shared retirement account, to opening a new super account and redistributing funds from the shared account.

• The day-to-day care and custody arrangements of a child, including the contact arrangements that the secondary custodial parent may have with the child, or contact with the child by the immediate family of either party. Disagreements about this can be resolved with consent orders.

What’s Not Included in Consent Orders?

While consent orders cover many aspects of family law disputes, there are limitations to what they can include:

• Matters unrelated to financial support, property division, or parenting arrangements, such as issues concerning the personal behaviour or conduct of either party.

• Specific non-financial child-related matters like educational decisions or religious upbringing might not be detailed unless they directly impact the welfare of the child and both parties agree to their inclusion.

• Terms that fall outside the legal jurisdiction of the family courts, such as business partnerships or arrangements governed by other areas of law.

• Consent orders do not govern the future relationships of the parties involved, including any conditions or stipulations regarding new partners, unless it directly impacts the welfare of the children involved.

• Issues that fall under criminal law, including domestic violence allegations.

• Any agreements or contracts that the parties may have with third parties that do not directly pertain to the issues at hand (e.g., business contracts, loans).

Beyond that, the specifics of your consent order should be discussed with a lawyer. At AJB Stevens, we understand that consent orders can be complicated to work through. Figuring out what you’re entitled to ask for and what you’re not, is tricky. That’s why we’re here. We help you establish the correct inclusions to make in your consent order as it relates to your specific circumstances.

It is highly recommended that both parties hire a lawyer to create and manage a consent order and any revision requests by either party before the order is put before the court. Given the difficulty of amending a consent order once it’s been ratified, each party should create their terms for the order with the assistance of their lawyer.

Lawyers may seem like an unnecessary part of a consent order, particularly given that it is supposed to sanctify the expressed wishes of either party in a divorce or separation. However, hiring a lawyer to assist with the creation and submission of a consent order has several benefits.

Benefits of hiring a lawyer:

• Lawyers bring an air of experience and impartial objectivity to the procedure of a consent order that would not be present without them. Emotion is removed from the situation, allowing both parties to clearly state their desired outcomes in such a way as to minimise further conflict.

• Family lawyers understand the law surrounding consent orders, including what is and is not covered under them, how much money a client could or could not reasonably expect to gain under a consent order, and what type of parenting and custodial arrangements are most likely to garner the desired outcome for their client.

• Lawyers have the resources and expertise to craft a solid consent order that includes all of the relevant information concerning the financial situation of their client and their client’s ex-partner or spouse. Having access to this information is paramount when attempting to revisit the financial contributions owed to you by an ex-spouse or partner.

• If there are children involved, then a Family Court will always consider the welfare of the children above and beyond anything else. Hiring a lawyer to ensure that your children receive the appropriate parenting time with your ex-spouse or partner may be the best way to ensure that they’re meeting their obligations to your children.

It is entirely possible that your situation may not require the services of a lawyer. And most lawyers will tell you this (we certainly will), as they don’t have time to take on cases that they’re not confident of obtaining a positive result from, or are unnecessary for them to be involved in.

These situations can involve child support payments, relatively minor financial disagreements, daily financial support for the child, or disputes with other family members other than your ex-spouse or partner.

At AJB Stevens, you’ll have access to competent, confident legal professionals during any separation or divorce proceedings, specifically as it relates to consent orders. Family law and property law are complex webs to navigate, but we’re here to help you do just that, for both your and your family’s benefit.