Children and Parenting

If you are separating, or thinking of separating, then one of your first priorities is sorting out the future living arrangements for your children. Our Family Lawyers know that every family is different. Children may live primarily with one parent and spend time with the other parent – they may live equally between two households – or somewhere in between. Parenting arrangements are often unique to each family.

The best thing for your children is to discuss the parenting arrangements with the other parent. If communication is difficult, then your family and your children may benefit from the use of a mediator through an organisation such as Relationships Australia (http://www.relationships.org.au/). A mediator can help break down communication barriers and assist with reaching an agreement that is in your children’s best interests. Attending a mediation with Relationships Australia is usually a very cost-effective way of negotiating a parenting agreement.

How do I formalise a parenting agreement?

There are two ways to formalise a parenting agreement:

  1. You may implement what the Family Law Act calls a Parenting Plan.
  2. You may apply to the Family Court of Australia for Parenting Orders.

If you and your partner have reached agreement on the parenting arrangements for your children, then our expert Family Lawyers in Melbourne can assist you by preparing a Parenting Plan or Parenting Orders.

What is the difference between a parenting plan and a parenting order?

The major difference between a parenting plan and a parenting order is that orders are made by the Family Court of Australia and are legally binding and legally enforceable. This means if the other parent does not adhere to the orders then you can make an Enforcement Application.

A Parenting Plan, on the other hand, is not a binding order. It is a document, detailing the arrangements for the children, which must be in writing and must be signed and dated by both parents. If there is a breach of the Parenting Plan, the Court cannot enforce the Parenting Plan but the Court must consider the Parenting Plan if they intend to make parenting orders.

We can’t reach agreement – What do I do?

It is not uncommon to try and reach a parenting agreement with your former partner, only to be met with resistance and hostility. If you find yourself in this situation then you may need to go to Court to seek parenting orders. If there are urgent issues that need to be examined and addressed, then you may need to issue an urgent application in either the Federal Circuit Court of Australia or the Family Court of Australia.

Depending on your issues, it may be a requirement that you first attempt mediation with your former spouse. If mediation fails then you will be provided with a certificate which is provided to the Court along with your application for parenting orders.

Our Family Lawyers can provide you with advice on the best Court for your case and provide expert representation while guiding you through the complicated court process.

How will the Court decide my case?

Each case is different, and each family is unique. One common theme throughout all cases is that the Court must determine the case with the paramount consideration being to make orders which are in the best interests of the child or children.

Your child has a right, enshrined in law, to have a meaningful relationship with both of their parents. When the Court is determining how to determine your case, they will pay attention to the factors outlined in section 60CC of the Family Law Act. These factors include things such as:
a) The views expressed by the child;
b) The nature of the relationship between the parent and the child;
c) The practical difficulty and expense of a child spending time with a parent (particularly relevant in cases where one parent is relocating, or wishes to relocate);
d) The capacity of each parent to provide for the needs of the child.

There are many other factors outlined in Section 60CC of the Family Law Act and the full list can be found here (http://www5.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s60cc.html).

Many Family Law cases resolve without the need for the court to make a final decision. There are many steps along the way which assist the parents in coming to an agreement.

If you need to make an application for parenting orders, or if you are the respondent to an application for parenting orders, then call the expert Melbourne family lawyers at DCM Lawyers and let us remove the confusion and ensure you get the best result for you and your children.