If a relationship breaks down and there are children of same, it is generally important (in the absence of agreement with the other parent) to establish clear and enforceable arrangements for the children’s living arrangements.
WHAT ARE THE MAIN ISSUES?
The main things you will want sorted out will be:
- Whether the parents will retain equal shared parental responsibility. This is for major issues and usually remains shared. It includes:
- Health (including immunisation);
- Child’s name;
- Significant changes to living arrangements.
- With whom the children are to live; and
- How much time the children will spend with the non-resident parent or with other significant parties such as grandparents.
WHO MAY APPLY FOR A COURT ORDER?
The law stipulates that the following persons can apply for a Children’s Order, namely:
- The child’s parents.
- In certain circumstances the child.
- A grandparent.
- Any other person concerned with the care, welfare and development of the child.
PARENTING ORDERS BY CONSENT
Children’s arrangements can often be worked out between parents directly.
Alternatively, matters are frequently resolved through negotiations between lawyers with expertise in this area. As a result litigation can be avoided.
Once agreement is reached, it is important that there is certainty and security for both parents and importantly for the children. This can be achieved by filing an application and proposed Consent Orders with the court, setting out what has been agreed. This step ensures that the arrangements are binding and enforceable. This process does not involve a court appearance by the parties or their lawyers and is therefore relatively inexpensive.
The Plan can deal with living arrangements and other matters important to the family.
However, unfortunately a Parenting Plan cannot be enforced as a Court Order. That means that if there is a dispute, the Plan cannot be relied on by either party and a Court Order then has to be sought.
Therefore our view is that as a general proposition, that Parenting Orders ought to be sought in almost all cases.
YOUR OPTIONS IN THE EVENT OF DISAGREEMENT ABOUT CHILDREN’S LIVING ARRANGEMENTS
Alternative Dispute Resolution – Pre Action Procedure
If agreement cannot be reached about children, an Application can be filed with the Court. However, unless the matter is urgent, parties first have to attend Alternative Dispute Resolution (ADR) before they are permitted to file a Court Application (see Section 60I of the Family Law Act 1975).
ADR is offered by a number of agencies such as Relationships Australia. There is also a number of accredited private agencies which can assist.
If there is urgency or risk, a Children’s Order Application can be filed immediately without first attending Alternative Dispute Resolution. This might be because there are family violence or abuse risks or a situation of urgency such as a child snatch or international relocation.
Interim Hearing/Interim Orders
After a routine Application is filed, it usually takes several weeks to come before the Court. However, if the matter is urgent, a party can ask the Court to abridge (shorten) the waiting period, depending on the urgency. An Interim Hearing can be listed promptly, with priority.
At the Interim Hearing, the Court reads the Application and Affidavits that have been filed and makes Interim Orders to deal with immediate issues pending a final determination about arrangements for the children. The Interim Orders the Court may make can include:
- Search and Recovery Orders – to locate and return children. This can include searching of aircrafts, other vehicles, etc.
- Airport Watch Orders – to prevent children departure from Australia.
- An Order about with whom the children are to live for the immediate future.
- An Order as to time the other parent is to spend with the children, including issues of supervision where relevant.
- Surrender of Passports.
- The appointment of an Independent Children’s Lawyer to independently articulate the best interests of the children.
- An Order for a Family Report.
- An Order for psychiatric treatment and/or psychiatric report.
- An Order for psychological treatment and/or psychological report.
The Court does not hear evidence at the Interim Hearing/ Interim Order stage. The Court makes its interim decision based on brief oral submissions by the parties or their lawyers and on the paperwork before the Court on the day.
The focus is to lock in arrangements that best protect the children and assist in maintaining relationships with both parents until a Final Hearing at a later date.
WHAT CAN YOU EXPECT AFTER THE APPLICATION HAS BEEN FILED AT COURT?
After any interim issues are dealt with and the case is awaiting Final Hearing, the Family Court and Federal Circuit Court continue to offer opportunities to resolve children’s disputes without a final hearing. These supportive Court arranged steps include mediation, counselling, and the intervention of a family consultant.
Alternatively, your lawyer can arrange Mediation and often matters can settle there without continuing with the litigation.
During this period, endeavours can also continue to be made by your Solicitor to negotiate out and resolve the dispute without a Final Hearing.
As parties can be waiting for around a year to get to a Final Hearing, they are encouraged to try to reach agreement. The vast majority of cases end up settling without a Final Hearing.
Often as part of the process of resolving a case, the Court will order a Family Report. The purpose of this report is to assist the Court in deciding a children’s dispute. The report writer is usually a psychologist or social worker with extensive family law experience. The report writer makes recommendations. However, it remains up to the court to make the final decision, if the parties cannot agree.
Often, the Family Report writer’s recommendations assist the parties in reaching agreement and the Final Hearing can be avoided.
If the matter proceeds to a Final Hearing, the Family Report will be relied on as a piece of evidence, and the report writer can be cross examined.
As part of the investigative report process, either a party or the court may ask that a party or the children be examined by an expert, such as a psychologist or a psychiatrist who then prepares a report. That report helps the Court make decisions about the case. The report writer can be called to give evidence. Sometimes the report will recommend ongoing treatment for a party or a child.
Often once a Medical Report is available the parties can move forward and reach agreement.
Post separation parenting program
Sometimes the court or the parties seek participation is a Post Separation Parenting Program. The group work this involves can really help parties work through shared parenting and conflict management. Often the process of participating can diffuse many issues and help the parties focus on the children. Agencies such as Relationships Australia offer this service.
Independent Children’s Lawyer
In some cases the court decides to appoint an Independent Children’s Lawyer (ICL). The ICL’s job is to put forward what is best for the children. It is not a question of the ICL following the children’s wishes, but weighing up what the ICL believes is in the best interests of those children.
Cases where an ICL may be appointed might include:
- Where the parents simply cannot agree on anything
- Where there has been child abuse
- If there is a risk of separating siblings
- If neither parent has a lawyer and therefore there is no formal representation at court.
In some circumstances, legal aid generally funds the appointment of an ICL. Often as a parent you may be asked to contribute to the legal costs of that appointee.
WHAT LAW DOES THE COURT APPLY WHEN MAKING CHILDREN’S ORDERS?
Section 60CA of the Family Law Act 1975 says that when making Children’s Orders, the court must prioritise the best interests of the children.
Section 60CC(3) identifies primary considerations and additional considerations which a court has to look at when weighing up what is best for a child.
Primary considerations are:
- The Benefit to the child of having a meaningful relationship with both of its parents; and
- The need to protect the child from physical or psychological harm, abuse or neglect.
Additional considerations include:
- Views expressed by the child
- What sort of relationship that child has with its parents and any other party such as Grandparents
- Each parents’ involvement with the child to date
- How any change in current arrangements would affect the child’s relationship with parents or other important third parties
- Practical difficulties and expense which spending time with a child is likely to have
- Capacity of the parents to provide for the child’s emotional and intellectual needs
- The maturity, gender, lifestyle and background of the child and the child’s parents
- If the child is of Aboriginal or Torres Strait Islander descent, the child’s rights to continue to enjoy that culture
- The attitude of each parent to parenting
- Any family violence issues
- Making orders that are likely to finalise matters rather than lead to future litigation
- Any other facts or circumstances that the court thinks would be relevant
- Section 61DA of the Family Law Act 1975 stipulates that when making Children’s Orders the court must start with the presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility.
That presumption does not apply if there are reasonable grounds to conclude that a parent of the child has been involved in abuse of the child or another child, or family violence.
- Section 65DAA of the Act provides that where the court makes Orders that the parents retain equal shared parental responsibility, then as a starting point, the court must consider whether giving the parents equal time with the child is in the best interests of the child and is reasonably practicable in all the circumstances.
- That same section then says if the Court does not end up ordering equal time between the parents, then it must consider whether the child should spend substantial and significant time with each parent.
- If the Court considers it but then concludes that substantial and significant time is not appropriate, the Court must then explore what other arrangements would be in the best interests of the child and be reasonably practicable.
The steps a Court must take and the issues a Court is bound to weigh up are detailed and complex. When starting a Court Application or presenting a Contested Final Hearing, it is vital that your case is argued through logically, having regard to each and every one of the relevant sections of the legislation.
CAN CHILDREN’S ORDERS BE VARIED?
Unlike Property Matters, Children’s Orders are never final. They can be varied later if there is a significant change in circumstances.