Custody of Children
Parenting arrangements (often called custody arrangements) for children can be agreed between parents and documented by parenting plans or court orders.
CHILD CUSTODY AGREEMENTS BETWEEN PARENTS
If you reach agreement in relation to the arrangements for your children you have alternatives as to how you document (or not document) your agreement. Many families don’t have any written agreement, particularly when the parents are able to effectively communicate and there is a level of trust between them.
Where parental communication is an issue is it wise to document your agreement by use of a Parenting Plan or alternatively a Court Order lodged by both parents in the Family Court.
The following information is provided as an overview of matters relating to arrangements for children. Your particular circumstances will be discussed with you at the time of your appointment.
Parenting matters may be resolved by either:-
- negotiated settlement; or
- mediation (family dispute resolution)
- decision of the Court.
You may document agreements relating to parenting arrangements by:
- a parenting agreement or plan;
- a consent order filed in Court.
Where parents have reached a negotiated settlement of parenting issues then this settlement can be documented by either a Parenting Plan or Consent Court Orders made by the Court.
A Parenting Plan: —
- sets out the parenting arrangements which the parents have negotiated for the care of a child;
- sets out the procedures for the review of parenting arrangements in the future and in the event of a failure to reach agreement about parenting arrangements.
- is made under the provisions of the Family Law Act 1975 relating to parenting issues and dealing with the care, welfare and development of a child.
- is a voluntary agreement made which is made free from any threat, duress or coercion.
- cannot (until it has been made a Court Order) be enforced by contravention proceedings in the Court, however, if there is a breach of the Parenting Plan then in the absence of a negotiated resolution the dispute can be referred to the Court for the making of a Court Order dealing with the dispute.
- must be taken into account by a Court when making a Court Order if a dispute regarding parenting issues is referred to the Court at sometime in the future and the Court will consider what is in the best interests of a child and the compliance with the obligations under the Parenting Plan.
- may make changes to a previous Court Order without the necessity of being referred to the Court for such changes to be made to the Court Order where the parents agree to the changes.
- may be changed by the making of a new Parenting Plan;
- is not required to be registered with the Court or any other authority (except where there are court proceedings taken contrary to the terms of the Parenting Plan).
A Consent Court Order: —
- is more formal than a Parenting Plan;
- is less flexible than a Parenting Plan in that it cannot include as detailed or as wide issues for the parenting arrangements that parents often wish to include;
- cannot be varied or changed without being referred to the Court to discharge the Court Order and make a new Court Order;
- can be enforced by contravention proceedings in the Court if there is a breach of the Court Order.
What the Family Law Act says in a nutshell
Prior to any matter relating to parenting issues being filed in the Court the parties are required to participate in family dispute resolution with the assistance of a registered family dispute resolution practitioner (unless exceptions as set out in the specific provisions of the Family Law Act apply, such as domestic violence, child abuse, urgency, etc).
Family dispute resolution is a process of mediation of parenting issues between the parents with the assistance of a family dispute resolution practitioner (mediator). If agreement can be reached as to the parenting arrangements then these arrangements can be formalised by either a Parenting Plan or Court Orders made by the consent of the parents. However, if agreement cannot be reached then a Certificate will be issued by the family dispute resolution practitioner which then enables either party to file court proceedings for parenting issues. If a party fails to participate in family dispute resolution then a Certificate may be issued to reflect this and court proceedings commenced.
The Court is required to consider the following: —
- the best interests of the child as the paramount consideration;
- ensure that the best interests of a child is met by both parents having a meaningful involvement in their child’s life; that the child is protected from physical or psychological harm; that he or she receives adequate and proper parenting; and the parents fulfil their duties and meet their parental responsibilities;
- In determining what is in a child’s best interests the court must consider the matters set out in 60CC of the Family Law Act 1975;
- When making a parenting order the court must apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility (not time), however, this presumption may not apply or may be rebutted in cases of child abuse and/or family violence or when the evidence establishes that it is not in the child’s best interests for it to apply; and
- In the event that the court orders the parties to have equal shared parental responsibility the court must apply the provisions of 65DAA of the Family Law Act 1975 which provide for a consideration of the child spending equal time with the parents. If the court finds that is not in the child’s best interests or reasonably practicable then the court must consider the child spending substantial and significant time with the parents.
Court Representation
Whilst we recommend dispute resolution methods in appropriate circumstances including negotiation, mediation and collaborative methods, be undertaken to attempt to resolve the issues in dispute, if resolution of the dispute is not possible then we have the expertise and experience as family lawyers to represent you in Court.
