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Children’s matters may be dealt with in the Federal Magistrates Court or the Family Court of Australia.
The Federal Magistrates Court was established to streamline the process of Family Law matters by dealing with less complex matters such as parenting orders, location and recovery orders. The Family Court of Australia will ordinarily deal with complex family law matters.
Often a matter may begin in the Federal Magistrates Court and, when determined to be of particular complexity, then be transferred to the Family Court of Australia.
A parenting plan is a written agreement between the parties to a separation setting out their plan for the care and maintenance of their children. It will not contain details regarding property settlement or spousal maintenance.
Parenting Plans are non-binding agreements created by a mother and father (or person in charge of the care of the child). The agreements can be created with the assistance of a dispute resolution service, between the parents or with the assistance of a family lawyer.
Parenting Orders formalise parenting plans by way of Court Order. Parties to a separation must attend Family Dispute Resolution before applying to court for parenting orders.
At Dispute Resolution the parents can create Parenting Plans or Consent Orders which are agreements between the parties in writing outlining the agreement in relation to the children. These agreements are not legally enforceable however are commonly used between parents so as to have the agreement in writing to refer back to. It is easier to comply and refer to a written agreement and in many cases can be enough to satisfy both parties.
If parties cannot agree and no parenting plan is created court orders can be sought and these will be legally enforceable against the parents of the children. A certificate proving the parents attended Family Dispute Resolution must be provided to the courts before proceedings begin. If one parent refuses to attend the dispute resolution the certificate can indicate this and the attending parent can still apply for court orders.
If the child is at risk of abuse or the child is currently in an abusive situation the parents will not be required to attend Family Dispute Resolution. Rather the court will be looking to make interim orders (urgent or temporary orders) to protect the child before making more permanent Parenting Orders.
A Parenting Order will replace a Family Violence Order. Parenting Orders will replace Parenting Plans if made after the Parenting Plan. If parents elect to make a Parenting Plan after the court orders these will take precedent (override) even though they are not legally enforceable.
What can a Parenting Order cover?
Parenting Orders may be very broad or very precise. The nature of the orders will depend on the terms sought by the parties and what the Court believes to be in the best interest of the child. Orders may cover ,but are not limited to, the following aspects of a child’s life:
- primary place of residence;
- contact with parent;
- religious education;
- medical treatment;
- methods of travel.
Orders may also direct the mode of dispute resolution to be employed where there is disagreement between the parents.
Breaching Parenting Orders
Penalties for breaching a Parenting Order include paying for expenses incurred by the other party as a result of the breach, legal costs, community work, fines, and can extend to jail time. Repeated breaches of parenting orders will factor against the breaching parent when the parenting orders are revised.
A parent can raise ‘reasonable excuse’ in defence of breaching a Parenting Order. It will be a reasonable excuse where the parent did not believe their actions breached the terms of the parenting order, or they reasonably believe that the action was necessary to protect the health and safety of the child.
Costs for maintaining children
Equal Shared Parental Responsibility
Generally, parents have equal shared parental responsibility of a child and are equally responsible for costs in relation to the maintenance and care of that child. If one parent believes the other to be unfit or incapable of meeting their equally shared commitments Parenting Orders can be sought.
Parties may apply to the “Child Support Agency” being the administrative body for the collection and distribution of child support in Australia.
Alternatively, parties able to reach an amicable arrangement for child support can manage their affairs independent of the agency. It is important to note, however, that Centrelink has specific requirements and regulations relating to the receipt of child support.
Child support will be relevant to the court in the making of Parenting Orders this does not necessarily mean non-payment by a party will impact their ability to see or spend time with the child.
Our family solicitors can assist parties in drafting agreements for child support.
contact us to find out more or to discuss our fixed fees and disbursements.
Children’s Matters | Applying for a Parenting Order Australia | Child Support Australia Contact | Australia Parenting Plan | Family law Townsville