Applying to the Court for parenting orders is a last resort after all genuine efforts to resolve the matter have been exhausted.
If parents can agree, the court can make legally binding consent orders. The orders made by the Court are also known as parenting orders. A parenting order must be followed by all parties. A parenting order may address the following:
Who the child does and will live with;
How much time the child will spend with each parent and with significant people, such as grandparents;
The allocation of parental responsibility;
how often the child will communicate with a non-resident parent (or other people);
Any relevant aspect of the care, welfare and development of the child.
As a first step, we encourage all our clients to speak with your ex-partner and see if you can make an arrangement to care for the children together before seeing a lawyer.
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What do I need to do before going to Court?
The Family Law Act 1975 requires you to make an attempt to resolve disputes about parenting matters using family dispute resolution (FDR) services (and obtain a s60i Certificate) before applying to a Court for a parenting order.
FDRS and other pre-action procedures are intended to assist you to resolve your dispute as quickly and amicably as possible. You must engage in good faith communications and cannot use pre-action procedures to harass, cause improper delay or incur unnecessary costs.
If you are unable to resolve your matter at a FDRS mediation, you will need to exchange correspondence identifying the issues that remain in dispute and in good faith provide full and frank disclosure of all material information. If litigation is to proceed, you will need to issue a valid notice of intention, outlining the issues in dispute and proving a genuine offer to settle.
If an agreement is reached, you and the other party may enter into a parenting plan or apply to the Court for consent orders.
If the FDR process was unsuccessful in resolving the dispute, bear in mind that there are other dispute resolution processes such as family counselling, negotiation, conciliation and arbitration, in which you and the other parties could participate in, to resolve or narrow the issues in dispute. You can participate in all of these dispute resolution processes at any time before commencing court action.
Where an agreement is not reached after following the above steps, you may then proceed to file an application with the Court.
Under section 60I(9) of the Family Law Act 1975, you can seek an exemption from complying with pre-action procedures if the following applies:
if your matter is urgent
if the Court is satisfied that there are reasonable grounds to believe that:
there has been child abuse and/or family violence by a party
there is a risk of family violence by a party, and/or
there is a risk of child abuse if there were to be a delay in applying to the Court
if a party is unable to participate effectively in FDR (for example, due to an incapacity or physical remoteness from a FDR provider)
if your application relates to an alleged contravention of an existing order made within the last 12 months, and there are reasonable grounds to believe that the person who has allegedly contravened the order has behaved in a way that shows a serious disregard for his or her obligations under that order.
If you believe that any of the above categories apply to you, we encourage you to reach out to seek legal advice at your earliest convenience.
Otherwise, you will be required to prepare and file an Affidavit (Non-Filing of Family Dispute Resolution Certificate); or file an Initiating Application (Family Law), seeking interlocutory or interim orders and outlining your reasons for urgency in the supporting application.
I am a grandparent, can I apply to the Court too?
Grandparents are specifically mentioned in the Family Law Act as being able to apply to a Court for orders to spend time with their grandchildren.
It is, however, important to be aware that this does not mean that grandparents (or indeed parents) have an automatic right to spend time with the children.
The Family Law Act makes it clear that the ‘best interests of the child’ is the main consideration when it comes to decisions about parenting.
The focus of the Family Law Act is on the rights of child(ren) to know and be cared for by both parents and other people significant to their care, welfare and development, such as grandparents and other relatives.
Sometimes grandparents are stopped from having a relationship with their grandchildren.
This can happen where the relationship with your own child has broken down (but the parents’ relationship remains intact), or where the parents have separated and one parent refuses to let you have anything to do with your grandchildren. It can also happen if you have been the primary carer for your grandchildren and the children’s parent returns to take the children back into their care.
Grandparents or anyone else who has an ongoing relationship with a child, or any other person who can show that they are concerned with the care, welfare or development of a child (including grandparents) may apply to the Court for parenting orders.
What if the other parent does not comply?
A "contravention" or a "breach" of Court Orders occurs when a party does not comply with the Court Orders. These Court Orders ar elegally enforceable and must be followed.
If someone has breached an order, it means that they have (1) intentionally failed to comply with the order, (2) made no reasonable attempt to comply with the order, (3) intentionally prevented compliance with the order by a person who is bound by it or (4) aided or abetted a contravention of the order by a person who is bound by it.
The only way the court will penalise someone for contravening a Court Order is if the other person to whom the order applies files an application alleging a breach of the Court Order or non-compliance with the Court Order.
If you believe a breach has occured, you should seek legal advice on your options and before filing the following documents in Court, including (1) an application for contravention of Court Orders, (2) a supporting affidavit, (3) a certificate from a FDRS practitioner, or an affidavit for non-filing of a family dispute resolution certificate and (4) a copy of the existing orders. There is no filing fee for such an application.
Such an application will be determined based on the "balance of probabilities."
What if the other side is withholding the child(ren)?
The choice to withhold a child from the other parent is stressful for everyone and may be illegal, depending on the circumstances.
It is presumed under the Family Law Act 1975 that both parties should be involved in the life of a child. If a parent has serious concerns about the safety or well being of the child, they should apply to the Court and let the Judge make such an Order based on the evidence.
If someone has been accused of contravention of Court Orders, they may have a reasonable excuse for doing so.
The Court may accept reasonable excuses for withholding the child or breaching Court Orders on these grounds; (1) the person did not understand their obligations under the order; (2) the person believed on reasonable grounds that their actions causing the contravention were necessary to protect the health or safety of a person, including themselves or the child, or (3) his contravention did not last any longer than was necessary to protect the health and safety of the relevant child.
If the court accepts that there was a reasonable excuse, they will waive any penalties for a breach or a contravention, even if there was found to be a contravention of the Court Orders. Without reasonable excuse or justification, the Court can make a finding that a parent is contravening a parenting order and impose consequences ranging from a fine, a bond, even imprisonment.
We recommend that you speak with a family lawyer immediately to protect your rights and get your preferred arrangement back on track without delay.
What if I want to change a previous agreement?
If you have agreed on a Parenting Plan, this agreement may be changed at any time by agreement between the parties as long as it is dated, in writing.
If you have Parenting Orders, they cannot be changed except by consent of the parties or if the court determines that it is appropriate to change the order. If agreement is reached between the parties, consent orders can be obtained accordingly.
For the courts to change a parenting order, without consent of the other party, you will need to show that there has been a significant change in circumstances since the order was made (as per Rice & Asplund).
The courts are generally reluctant to reexamine parenting matters and change a parenting order unless there is a compelling reason to do so and it is in the children’s best interests. If you cannot reach agreement and believe there has been a significant change in the circumstances, you will need to file an application with the Court. The court will assess the merits of the application and the best interests of the child will be the paramount consideration.
Alternately, if you obtained your original parenting orders within the last 28 days, you could consider an appeal.
We recommend that you reach out and obtain legal advice and enlist a family law solicitor to assist you before you seek to iniitate a mediation or otherwise file an application with the Court.