Finalising Parenting arrangements can be achieved through engaging in negotiation and exchanging correspondence with proposals between the parties’ Solicitors and/or attending a Family Dispute Resolution Conference (Mediation) with a Family Dispute Resolution Practitioner (which may be conducted via face-to-face, telephone or shuttle). These alternative dispute resolution processes (if appropriate), allow parties to resolve any remaining issue in dispute and to formulate a parenting arrangement without commencing Court proceedings. Should the parties reach an agreement, then a Parenting Plan or Consent Orders may be entered into to formalise the proposed arrangement.
Parenting Plans are likened to a private contractual arrangement between the parents, providing flexibility to be changed and amended as the needs of the child or circumstances change. However, Parenting Plans are not enforceable by the Court, therefore if a parent does not follow the Plan, the Court will not be able to enforce the other parent to comply. The Court may, however, take into account the existing Plan and the arrangements that were in place in making fresh Parenting Orders. By comparison, Consent Orders have the same effect as Orders made by the Court of its own motion and are therefore enforceable. Should Consent Orders not be complied with, a parent is able to commence Contravention proceedings against the other parent for non-compliance.
Should you not be able to reach an agreement with your spouse or you are being prevented from spending time with the child, then it will be appropriate to commence Court proceedings, seeking Parenting Orders. We note that commencing Court proceedings should be reserved as the last approach. Further, before filing, the parties are required to attend Mediation, unless it is not appropriate to do so due to the matter being of an urgent nature or there has been family violence. This is because the parties are provided with a s 60I Certificate confirming their participation at Mediation and this must be annexed to the filed Court documents. If Mediation has not been attended because it was assessed as not appropriate, this will then be recorded on the s 60I Certificate.
The Court’s Approach to Parenting Arrangements
The Court’s approach in determining Parenting Orders for a child is to ensure that all aspects of a proposed arrangement will be in the “best interest of the child”, as this is the paramount consideration. The best interests of a child are for both parents to have “Equal and Shared Parental Responsibility” for making decisions in relation to the child’s long-term care, welfare and development in respect to major matters affecting the child, such as medical treatment, education and religion.
In making Parenting arrangements, the Court’s “Primary Consideration” is to ensure the child has a meaningful relationship with both parents as well as to protect the child from physical or psychological harm or being exposed to abuse, neglect or family violence. The Court places significance upon the later.
The Court will also take into account the following “Additional Considerations”:
- the child’s views and any factor which the Court will consider in placing weight on those views;
- the nature of the child’s relationship with each parent and other persons such as grandparents or relatives;
- the extent to which each parent has taken or failed to take, the opportunity to participate in making major, long-term decisions, to spend time and communicate with the child;
- the extent to which each parent has fulfilled or failed to fulfil, their obligation to maintain the child;
- the likely effect of any changes in the child’s circumstances, such as being separated from either parent;
- the practical difficultly and expense of the child spending time with and communicating with a parent. And whether that difficulty or expense will affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
- the capacity of each parent or other person, to provide for the needs of the child, including emotion and intellectual needs;
- the maturity, gender, lifestyle and background (lifestyle, cultural and traditions) of the parents and child;
- if the child is Aboriginal or Torrens Strait Islander and the child’s right to experience this culture;
- each parent’s attitude to the child and to the responsibilities of parenthood;
- any family violence involving the child or member of the child’s family;
- whether a Family Violence Order applies;
- whether it would be preferable to make an Order that would be least likely to lead to the institution of further proceedings in relation to the child; and
- any other fact or circumstance that the Court thinks is relevant.
Accordingly, the child should spend equal time with both parents and should communicate with the other parent, whom they are not currently spending time with. However, if this type of arrangement is not appropriate due to it not being in the best interests of the child or not reasonably practicable to continue to facilitate in future years, then consideration is given to the child spending “Substantial and Significant Time” with his parents. This means, that the child will generally live with one parent and spend frequent time with the other parent on a scheduled basis for sufficient periods of time on each occasion to ensure the child develops a relationship with the other parent. Additional time is scheduled for days of significance and school holidays. Arrangements will differ depending on the child’s age, with future arrangements to trigger when the child reaches certain developmental or age milestones.
Should Court proceedings be commenced, parties may anticipate the appointment of an Independent Children’s Lawyer (ICL) in certain circumstances. The costs of the ICL are usually equally funded by the parties.
The Court will also direct the parties to attend a Child Dispute Conference (CDC) with a Family Consultant (psychologist or social workers), who will usually separately interview each party to discuss the issues in dispute, risk factors, the child and co-parenting relationship. The Family Consultant will then prepare a CDC Memorandum for the Court about these factors discussed, any agreement reached by the parties as well as future directions and recommendations.
Before a Final Hearing is set, the Court may also direct that a Family Report be prepared through conducting a series of interviews with the parties, observing your interactions with the child as well as consulting doctors, teachers and other professionals and Subpoena material produced (where available).
If you want to prepare Parenting Orders, feel free to contact our office for a face-to-face consultation. Alternatively, you can click on Parenting Orders to access our online services, where you can apply for Parenting Orders by yourself at a more affordable price with limited guidance.