In Australia, proceedings concerning the care of a child and with whom a child spends time are governed by the Family Law Act 1975 (Cth). This legislation includes a regime outlining various factors the Family Court of Australia and Federal Circuit Court of Australia (“the Courts”) are bound to consider when determining what is in a child’s best interests, including the maintenance of the child’s parental and other significant relationships.
There are three ways that parenting arrangements can be formalised: Parenting Plans, Consent Orders and by a contested Application to the Court.
A Parenting Plan is a document signed by both parents outlining the terms of their agreement on how their child/ren are to be cared for. This is the most cost effective way to document an agreement on care arrangements for children. However, Parenting Plans are not binding and are not able to be enforced. A Court may consider the terms of a Parenting Plan when making a decision on a contested parenting matter.
Consent Orders are more formal than a Parenting Plan. It is a document signed by both parties outlining the terms of their parenting agreement. However, the terms of agreement are annexed to an Application for Consent Orders and are filed in the Family Court of Australia. Upon filing, the terms of the agreement are reviewed by a Registrar, who ensures that the agreement is appropriate, practicable and consistent with the principles set out in the Family Law Act 1975 (Cth), considering the best interests of a child. Once the Registrar is satisfied of these matters, the terms of the parties’ agreement is made an Order of the Court, and has the same effect as if a judge were to determine the matter and impose those orders on the parties. Any breaches of the Order is enforceable by the Court.
While formalising parenting arrangements by way of Consent Orders affords the parties a greater degree of certainty, if one of the parties later wish to change the parenting arrangements and the other party won’t consent to that change, an Application would need to be brought before the Court, which will usually only consider changing an Order if there has been a significant change in circumstances since the Order was originally made.
Application to the Court
In circumstances where parties are unable to agree upon parenting arrangements for a child, an Application can be filed in the Federal Circuit Court of Australia or the Family Court of Australia. This process involves both parents setting out what orders they seek and allows each of the parties to place evidence before the Court by affidavits and subpoena. The Judge will then make a decision as to what arrangements are in the child’s best interests and make orders giving effect to those arrangements.
We are able to assist clients with all aspects of parenting disputes. Contact our family law team to meet with one of our experienced family lawyers about your particular situation.