Arrangement for Children | Collier Family Law

We know you only want what’s best for your children, and so do we. We will make sure we get the best arrangements possible for your children, so that you can focus on moving to the next chapter of your life. Here are some of the most common children and family law matters. Click on a topic for more information. 

Click on the following if you want to know more about that topic:

Ways to help children through separation

Many children feel very sad when their parents separate. What will help them the most is resolving any conflict with the other parent as soon as possible; working out how to protect your children from conflict, and working on communication with the other parent.

Conflict between parents puts an incredible burden on children and can result in poor performance at school, emotional issues, behavioural problems, often long lasting psychological trauma. Every parent will say they would never hurt their child, not realising that unresolved parental conflict does just that. See our articles for more ideas about resolving conflict; working together and improving communication.

Blog – 3 tips to better co-parenting –Co-operation, Communication and Consistency
Blogs – see Citylife articles on co-parenting ( do it for the kids, co=parenting)

See what factsheets we can get from RA

Consent Orders/ Parenting Plans – what are they and how do I get one in place?

What are “Consent Orders”?

When we say “Consent orders” we are talking about an application that is made to the Family Court asking the court to make orders in relation to parenting arrangements. (the application can also be about property.) There are two forms that are submitted. One is the Application itself, where you set out all the personal details of the relationship and the children. The second document is what we call “Minutes of Consent Orders”. This document contains the actual orders you are asking the court to make – for example, “that the children live with Parent A” and “That the children spend time with Parent B as follows”.

Do we really need a Consent Order?

For a lot of families, a verbal agreement is fine. A verbal agreement will work if you are reasonably amicable, able to communicate, and trust each other. Also, if you are both prepared to have some flexibility in your arrangements.

There is no ‘law’ that says you must reduce your verbal agreement to writing, so if it is working for you, all good. However, be aware that there are two disadvantages to a verbal agreement. The first is uncertainty, and misunderstanding as to what really was agreed. The second, and biggest problem is that if it all goes pear-shaped, a verbal agreement is not legally binding or enforceable.

What is a Parenting Plan?

Another option for parents is a parenting plan which is simply a written agreement as to arrangements for children. It is signed by both parents but not filed in court. A parenting plan at least gives some certainly as to arrangements, but again, it is not legally binding or enforceable (as it is not actually an order of the court). It is good evidence of what was agreed, and the court will try to honour the parenting plan if the arrangements are in the best interests of children.

Whereas, a consent order is a court order, just as if you went to court and argued the case and the Judge made the order. A consent order is binding on parties and it can be enforced if necessary. It provides certainty for children, and for families.

How do we get a Consent Order; and is it easy to do it yourself?

For more information, the Family Court has a very helpful ‘kit’ that you can look at if you want to have a go filing it yourself. Go to www.familycourt.gov.au – application for consent orders. The Application itself is quite straightforward, but where people come unstuck is how to complete the actual orders themselves, for example as to parental responsibility, the actual arrangements themselves, and how to word all of these things. You won’t generally find any templates on the websites, and even if you do, you should take care using them without legal advice.

Of course we want you to get legal advice – with us!! But honestly, the benefit of legal advice about your agreement before you file it as there are some orders the court just won’t make (child support, for example) and also to make sure you have covered off on all the issues that might arise. These are court orders that are binding and enforceable and there can be severe penalties imposed for breaching court orders. You want to make sure you haven’t unintentionally, agreed to an order that might be a problem in the future.

At Collier Family Law we offer a service whereby you fill in as much of the paperwork as you can, we provide you with a template of suggested orders and then work with you to finalize them. With you doing as much of the paperwork as possible (rather than paying us to do so) you reduce your fees.

Relocation – when you or the other person wants to leave with the children

The first question parents always ask is – Do I need the consent of the other parent to relocate? Why can’t I just go?

The answer is clear cut if there is a court order in place providing for equal shared parental responsibility; and/or orders that provide for the child to spend time with the other parent. If you move without jointly talking about the move; or, by moving away would mean that time cannot happen, then by relocating you would be in breach of the court order. Even if there is no court order, you still should have the consent of the other parent. If you move with the children without it (called a “unilateral relocation”) – you risk the court ordering the children to return.

It is important to note that the court won’t make an order preventing you from relocating to a new place; nor will the court order you to return to the place you have left. You, as the adult, have the right to be live wherever you want. The court will only make orders for the children and what this means is that if you relocate without permission, and the court thinks the children should not have been relocated, the court will order the children to return. Most likely, to live with the other parent if you could not, or would not, return as well.

If the other parent won’t agree, you can make an application to the court for a parenting order
which allows you to relocate.

The court will decide the case based on what is in the best interests of the child, which includes
things like:

  • views of the child;
  • how old the child is (it is harder for younger children to maintain a relationship with a parent if they don’t see them very often);
  • The relationship the child has with both parents, how much time the child spends with the other parent; how the proposed relocation will impact on the child having a meaningful relationship with both parents; in particular the parent who is left behind;
  • How far away is the proposed new place? Within Australia or overseas?
  • How the proposed relocation will affect the child’s life, relationships with family, schooling and so on;
  • Whether the other parent could relocate as well?

Relocations are very difficult cases to decide. There is no doubt that if the court allows a child to move away, the relationship the child has with the parent left behind will be changed forever. These cases can often be very finely balanced – i.e. there are many advantages to the child relocating but
equally, staying behind.

Relocation cases have to be handled carefully and properly and advice should always be obtained before any action is taken.

Recovery – the other parent has taken the children without my consent

The first thing we normally suggest is contacting the other parent asking them to return the child and warning them that if they do not, we will apply for a recovery order.

What is a recovery order?

This is an order of the Court, ordering the return of the child. The ability to apply for such an order isn’t only limited to parents. Other people could apply, so long as they have the required connection with the child; For example:

  • a parent, or grandparent;
  • a person who has parental responsibility;
  • a person who has an order that says the child lives with, spends time with or communicates with that person. (So a recovery order can be sought by the person with whom the children do not normally live.)
  • a “person concerned with the care, welfare and development of the child”. For example a person who the child lives or spends time with on an informal basis (no court order).

A recovery order not only orders the child to be returned but can authorise someone like a police officer, to take action to find, recover and deliver the child to person making the application ( or other appropriate person). Just be aware that the court will always prefer the child is collected by someone they know rather than the Australian Federal Police.

How do I apply for a Recovery Order?

An application for a recovery order is filed in the Federal Circuit Court. There is specific wording you normally ask for. See our blog for this wording; and for the details you have to put in an affidavit.

The sooner an application is made the better. It is hard to argue a recovery if you did nothing about it for a long period of time.
If you don’t know where the person who took the child is living, you can ask the court to also make a Location order; a Commonwealth Information order; or a Publication order. See our blog for descriptions of these types of orders.

What if the child being taken overseas?

You must urgently make an application to the court seeking an order to place the child’s name on the Airport Watch List.
See the court’s fact sheet ‘Children and international travel after separation’ – www.familycourt.gov.au.

What if the child is taken overseas before I can do anything?

Australia has an agreement with certain countries in the world to return children to their country of usual residence. The agreement is called the Convention on the Civil Aspects of International Child Abduction (the Hague Convention). For a list of countries party to the convention, go to
www.ag.gov.au (look under the international parental child abduction link) or call the Department on 1800 100 480.

Seek legal advice.

Parental Responsibility – what does this mean?

It means just what it says – who will have the responsibility for the child and in particular, the decision making for a child.

Stating the obvious, each of the parents of a child who is not 18 has parental responsibility. However, by consent or by other court order, the court can make an order giving some else, not a parent, “parental responsibility” like a grandparent.

It is presumed there will be “equal shared parental responsibility”. This means that parents must consult with each other and share responsibility for decisions about major long term issues in regard to the children.

What are Major Long term issues?

These are “bigger picture” issues. It is NOT the day to day decisions but rather, important issues such
as:

  • The child’s education (both current and future)
  • The child’s religious and cultural upbringing;
  • The child’s health;
  • The child’s name; and
  • Changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent. ( See our section on “relocation).

What if equal shared parental responsibility just isn’t going to work?

In certain circumstances, the court will make orders for SOLE parental responsibility. This means, it is no longer required to consult with the other parent and share responsibility for decisions about major long term issues in regard to the children, The person with sole parental responsibility will make all the decision and doesn’t even have to tell the other parent what those decision are.

As you would appreciate that is a pretty big step and won’t be made lightly, but such an order will be made in the following circumstances:

  • Where there has been family violence or child abuse;
  • Where the other parent has serious issues such as abuse of alcohol/drugs/mental health particularly such that communication with the other parent is compromised;
  • Where the other parent spends very little time with a child;
  • Other circumstances where the ability to communicate is compromised;
  • For any other reason where the court thinks it is in the best interests of a child for there to be sole decision making.

Time with each parent – how do we work this out? What is “Shared Care” and is it right for our children?

What time a child spends with each parent is always decided having regard to what is in the child’s best interests. For more information on “best interest” and what that means, see our section “What does “best interests” mean and how it is decided?

The Family Law Act now says, that if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:

(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

This amendment caused a lot of controvery at the time as there was a public perception that automatically, children would live in a shared care arrangement following separation.

The courts were quick to point out that in deciding whether to make a parenting order for ‘equal time’, the best interests of the child is the paramount consideration. In other words, the most important principle.

As for what is “reasonably practicable”? The Act says the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’; current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’; current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.

For example, if parents live too far apart, it wouldn’t be “practicable” for a child to have to drive 2 hours a day to attend school. But every case is decided on its own facts.

If not equal time? The next type of order the court is directed to consider is “Substantial and significant time” Which means the following (but is not limited to these things):
(a) the time the child spends with the parent includes both days that fall on weekends and holidays and days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in the child’s daily routine; and occasions and events that are of particular significance to both the child and the parent.

Again the overriding decision is whether “substantial and significant time” would be in the best interests of the child; and reasonably practicable.

If none of the above types of arrangements are in the best interests of the child; and reasonably practicable, then the court makes whatever other type of order it thinks is best for the child.

What does “best interests” mean and how it is decided?

S60CC Determining child’s best interests

Primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

The court is to give greater weight to the primary considerations.

Additional considerations are:
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;

(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;

(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs;

(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;

(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

(j) any family violence involving the child or a member of the child’s family;

(k) if a family violence order applies, or has applied, to the child or a member of the child’s family–any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;

(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

(m) any other fact or circumstance that the court thinks is relevant.

Consent orders

(5) If the court is considering whether to make an order with the consent of all the parties to the proceedings, the court may, but is not required to, have regard to all or any of the matters set out in subsection (2) or (3).

Right to enjoy Aboriginal or Torres Strait Islander culture

(6) For the purposes of paragraph (3)(h), an Aboriginal child’s or a Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

(a) to maintain a connection with that culture; and

(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.

What are the rights of parents when they separate to see their children?

Firstly its important to point out that no adult has “rights” under the Family Law Act. It is the right of the child to have a meaningful relationship with both his or her parents; to know and be cared for by both their parents; to spend time on a regular basis with, and communicate on a regular basis with,
both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives).

Of greater importance is the need to keep a child safe.

What does all of this mean?

Grandparents and other family – what are their ‘rights’

Firstly its important to point out that no adult has “rights” under the Family Law Act. It is the right of the child to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives).

Grandparents play an important role in a child’s life. Grandparents are specifically named as the class of people who may apply for a parenting order for a child; and the court will make orders for children to live with a grandparent if that is in the child’s best interests.

Passports – what if the other parent won’t sign

A child’s passport application needs to include the written consent of each person who has parental responsibility for the child, unless you have a court order permitting the child to have an Australian passport, travel internationally or live or spend time with a person outside Australia.

So if you have a court order granting you SOLE parental responsibility then you should be able to apply for the passport without the other parent’s signature. However, if you can, you should ask the court for an additional order that makes it clear you are allowed to travel internationally and the passport can issue without consent.

If the other parent can’t or won’t sign the passport application, you have the following options:

Option 1 – Application to the Passports Office

Request that your child’s application be considered under “special circumstances”. Special circumstances can include, but are not limited to, the fact you are the only parent named on the birth certificate; the existence of child welfare orders; the inability to contact a non-lodging parent for a reasonable period of time, and the absence of contact with a non-lodging parent for a substantial period. You will need to explain why consent has not been and cannot be obtained.

You should try this process first and make sure you allow plenty of time for the request to be assessed. You should also be aware that even when considered under the special circumstances provisions, there is no guarantee that a child passport application without full consent will be approved.

Option 2 – Seek an order from the court.

You will need to:
a) Attempt mediation; if unsuccessful
b) file an Application and an affidavit.

See our blog “How do I get a passport when the other parent wont sign?” for more information about what you would put in your affidavit.

Changing a child’s name – how do I do this and what if the other parent won’t agree?

Chapman v Palmer (1978) FLC 90-510 – the court should consider the following matters in determining whether to allow the child’s name to be changed; with the welfare of the child as the paramount consideration:

  • short and long term effects of a change;
  • Any embarrassment to the child;
  • Any confusion of identity for the child;
  • Any effect which a change of surname may have on the relationship between the child and the parent whose surname the child had during the relationship;
  • Advantages both short and long term in a change;
  • Contact the other parent has with the child;
  • The degree of identification the child has with the father and mother, and with any siblings;
  • The effect of frequent or random changes of name.

Beach & Slemmler (1979) FLC 90–692): – adopted the matters outlined in the case of Chapman and stated the following matters should also be considered:

  • the advantages, both in the short-term and the long-term, which will accrue to the child if the change of name is permitted
  • the contact that the father has had and is likely to have in the future with the child
  • the degree of identification that the child has now with the father
  • the degree of identification that the child has now with the mother and stepfather
  • the degree of identification that the child will have with a child that is about to be born to their mother and any likely confusion in the future if their father’s surname is restored
  • the desire of the father that the original name be restored.

Come and see us for a FREE 15 minute, no obligation chat so we can discuss your matter, and give you some guidance on what is involved and expected costs.

Contact Collier Family Law