If you are separated or divorced and you have children with your spouse or partner, then you’ve probably been involved  parenting agreement discussions and trying to work out a parenting arrangement.

These are agreements between you and your ex-partner regarding how you will both continue to look after your children. Sometimes, you may be issued a legally recognised parenting order from the Family Law Courts which you both have to follow.

Here’s some more information about Parenting Orders and what to do if you wish to make changes.

What is a parenting order?

A parenting order is a set of official orders made by a Court regarding parenting arrangements for a child or children involved in a separation.

They are set in place until the child becomes an adult at 18 years old. However, over time, the needs and circumstances of the child can change – meaning that the orders may need to adapt or be varied at some point.

Children naturally develop over time, from infancy to young adulthood, which means that their needs are unique and highly individual. As a result, don’t expect the parenting orders to continue to remain the same over time.

Parenting orders will likely need to change at some point, to align with where your child will be developmentally, socially, and intellectually in the weeks, months and years ahead. The Family Law Courts recognise this.

So, why then have parenting orders?

Even though parenting orders may change at some point, they still have an important role to play to create a structure for your child, open communication between  parents and reduce the risk of conflict between parents.

Having parenting orders means that there is a structured set of arrangements for your child put in place by the Court, enabling the parents to then structure their life around this and provide a routine and stability for their child. Parenting orders also provide an agreed framework for the parents to spend time with their children, which means that the risk of conflict or confusion is reduced.

How to change parenting orders

Sometimes, parenting orders may not always complement your schedule and can sometimes be highly impractical. If that is the case, you will need to seek legal advice around your options to vary the existing parental orders.

To change Parenting Orders, you may need to:

  • confer with the other parent to try to come to an agreement
  • consult a Family Dispute Resolution Practitioner to arrange a mediation
  • engage a Family Report Writer or Parental Coordinator to assist in determining the best interests of the child
  • commence court proceedings seeking orders to vary the existing parenting orders

What if parenting orders are breached?

Both parents should follow the parenting arrangements made by the Judge in the Court Orders, unless both parents agree in writing to change the arrangements set out in the Parenting Orders.

However, any action made by either parent that goes against the parenting agreement may have legal consequences. Serious ramifications for breaching the orders can include:

  • fines
  • make-up time
  • community service
  • participating in parenting programs
  • jail time
  • paying the legal costs of the other party and
  • other consequences depending on the seriousness of the contravention.

Please, seek legal advice immediately if there has been a breach of your parenting orders by the other parent or you are considering breaching the orders for a specific reason or if you believe the existing parenting orders should be changed.

Family dispute resolution prior to changing parenting orders

If the other parent will not agree to change the existing parenting orders, your first option is to try family dispute resolution.

Family dispute resolution, also known as mediation, is an effective way to resolve the differences between you and your ex-partner before resorting to starting proceedings in the Family Law Courts – especially when emotions are running high and it’s hard to find a middle ground.

When is mediation (family dispute resolution) not appropriate?

There are some exceptions that may apply to participating in mediation prior to attending Court.  This will bee assessed by your family dispute resolution practitioner (mediator).

These include:

  • if there is an agreement and the parenting orders are by consent (i.e. both parents have agreed to make a new Parenting Order or amend an existing Parenting Order and wish to formalise the new agreement by Consent Orders)
  • there are reasonable grounds to believe that there has been child abuse or family violence by a party or there is a risk of child abuse or family violence
  • there are reasonable grounds to believe that a person has behaved in a way that shows a serious disregard for their obligations under the Order
  • in circumstances of urgency; or
  • one or both parents are unable to participate effectively in mediation.

What if you reach an agreement with family dispute resolution?

If you reach an agreement with your ex-partner in mediation, you can formalise this agreement in the form of a parenting plan or a parenting order. However, a parenting plan is not legally binding, as it is more of a general discussion between parents.

So, if you have been able to reach an agreement through mediation, you may wish to consider obtaining Parenting Orders by submitting an Application for Consent Orders to the Family Court. This way, the changes will be legally recognised and therefore, enforceable. In this circumstance, you may wish to also seek legal advice to oversee the new Consent Orders that are drafted.

If you are in the unfortunate situation where you have attended mediation and were unable to reach an agreement, you will need to consider your next option – commencing proceedings in Family Court.

Commencing proceedings in court to change parenting orders

Whether minor or major, any changes to Parenting Orders which have not been agreed will not be considered by a Court unless there has been a significant and substantial change in circumstances.

If a parent seeks to vary the Parenting Orders, they must satisfy the court that there has been a significant and substantial change in circumstances that warrant a variation of existing parenting orders.

Broadly speaking, there are two classes of change:

  1. The parent seeking to vary the existing Parenting Order is able to establish to the Court that there was a material fact that was not disclosed to the Court when the Parenting Orders was made, or
  2. The parent seeking to vary the existing Parenting Order is able to present evidence of new circumstances that have arisen since the making of the original Orders.

So, what is a significant and substantial change?

The Family Law Courts have accepted (in some cases) the following matters as being a significant and substantial change in circumstances such to allow the parents to reopen the proceedings and seek to vary the existing parenting orders:

  1. Where one or both parents failed to disclose domestic violence perpetrated by one parent against the other prior to the making of final parenting orders
  2. Significant opposing behavioural changes in a child
  3. Where a child has been diagnosed with a significant health issue since final Parenting Orders were made which required a level of care for the child that rendered the existing Parenting Orders impracticable
  4. Re-marriage of one or both parents where the re-married parent was able to provide stable accommodation and care for the child after having re-married
  5. Where one parent has relocated or wishes to relocate or
  6. Where one parent has contravened and/or continues to contravene final Parenting Orders.

It is important to remember that unless the court has approved to vary an existing order or both parents have mutually agreed, both parents must comply with the existing parenting orders.

Ultimately, it is at the discretion of the Court to vary existing Parenting Orders and the Court will only do so if it’s in the child’s best interest.

Changing family court oOrders

If you are considering varying your existing Parenting Orders or believe you may fall into one or more of the categories that allow Parenting Orders to be varied, you should seek legal advice.

One of our referral partners’ who is a suitably qualified lawyer should be able to tell you whether or not your circumstances satisfy the conditions.

When a couple separates, it can be a difficult time – especially when children are involved.

Should you and your partner decide to separate, and you have dependent children together, the family law system encourages both parents to work out amicable arrangements for the children, either through a Parenting Plan or a Parenting Order.

What is a parenting plan?

A Parenting Plan is a written document which sets out the agreed arrangements that have been put into place for your children. This doesn’t require having to go to Court.

What is a parenting order?

A Parenting Order is a list of legally enforceable instructions made by a Court concerning the parenting arrangements of a child involved in a separation or divorce. Either this Parenting Order is based on an agreement between the parties and legally recognised (known as consent orders) or after a Court hearing or trial.

What types of clauses should a parenting plan or parenting order include?

No relationship is the same.

Because of this, there is no official set template or parenting clause checklist. So, while there are many different clauses that can be included in parenting orders or parenting plans for the ongoing care arrangements for children, the most common include:

  • Parental responsibility for the children
    – who makes what decisions for the children
  • The living arrangements for the children during the school term
    – including where they stay and how they get to and from school
  • The living arrangements for the children during school holidays
    – this may detail out a roster for certain vacation periods or school breaks
  • The arrangements for special days including birthdays, Easter, Christmas
    – special conditions or agreements may be applied for certain events
  • Changeover locations and times
    – including perhaps a calendar of pick up and drop off times for children
  • Access to information about the children including educational and medical information
    – which can mean sharing the details of each child
  • Telephone and video communications between the children and each parent
    – it’s often important to set boundaries around who can connect with each child at certain times
  • Restrictions on the children relocating outside a certain distance
    – stipulating where a child can live so as to not separate too far from each parent
  • Non-denigration clauses that prevent denigration of parents and extended family members
    – this involves being firm about unfairly criticising or insulting the other partner or their family members in front of the children
  • Interstate and overseas travel arrangements including obtaining and maintaining passports for the children.
    – being clear about what travel is allowed and what is required for this process

Having these set of clauses means that both parents understand what rules and responsibilities each have for the children involved in a separation.

In general, these clauses should be realistic, practical and in the best interests of the children.

Not every Parenting Arrangement will include the same clauses and this list is not exhaustive. It’s recommended to consider what parenting separation clauses you need to include to suit your specific circumstances – if you’re unsure, then you may wish to consider legal advice.

If in doubt, seek legal advice about making agreements for the arrangements for children.

If you are separated and you’re considering applying for a divorce, you’re probably doing a lot of research around the legal divorce process right now.

Applying for a divorce can be a confusing and emotional journey, whether you’re applying for a divorce by yourself with a sole divorce application or together with your spouse, known as a joint divorce application.

To help provide you with more information about what to be aware of when applying for a divorce, here are some tips to think about.

Visit the Federal Circuit Court of Australia

The Federal Circuit Court of Australia provides an online resource full of information regarding how to apply for a divorce and all the divorce paperwork that you need to submit.

You don’t need to apply to the Family Court of Australia to obtain a divorce. The Federal Circuit Court is a division of the Family Law Courts and can grant applications for divorce. The process to apply for a divorce is cheaper and quicker through the Federal Circuit Court than applying through the Family Court.

Joint applications allow you to apply for a divorce with your partner

Making a joint divorce application means that both your spouse and you sign the divorce application before filing.

By doing this together, you can avoid the need to serve the divorce application on your spouse and show the Court proof of service. It also means that it is not mandatory for either your spouse or yourself to attend the divorce Court hearing.

However, one or both parties may wish to attend the hearing to ensure you can address any questions should the Court require clarification or have any issues with the divorce application documents that have been filed. Otherwise, your application may be adjourned or dismissed entirely.

How to apply for divorce using a sole application

If your spouse refuses to sign an application for divorce, you can still obtain a divorce order by applying to the divorce Court with you being the sole applicant and your spouse as the respondent.

This means that once you have applied, you will need to serve a sealed copy of the divorce application on your spouse and file documents proving this service has been carried out. Attendance at the divorce Court hearing is mandatory if there are children under the age of 18 years, but not if there are no children of the marriage under 18 years of age.

However, it is still advisable that the person who has applied for the divorceattends the hearing to ensure they can address the Court if there are any issues with  the application.

To apply for a divorce, you need your marriage certificate

Make sure you have an official copy of your Marriage Certificate to submit.

If your spouse has your marriage certificate — which is required to apply for a divorce — you can easily obtain another copy through the Births, Deaths and Marriages registry.

A counselling certificate is required when you’ve been married for less than two years

If you have been married for less than 2 years, you need to file a counselling certificate. The two years is calculated from the date of the marriage to the date of applying to the Court for a divorce.

If this time frame applies to you, you and your spouse must attend an appointment with a counsellor to discuss the possibility of reconciliation before you apply for a divorce.

Visit here for more information regarding this: Factsheet – If you have been married for less than 2 years).

The divorce court filing fees

The current Court filing fee for a divorce in the Federal Circuit Court is around $900 (which can change over time – please check the Court website for the most up to date figure).

However, you may be eligible for a reduced filing fee if:

  • you have a health care card
  • a pensioner concession card
  • a senior’s health card
  • any other card issued by the Department of Human Services or the Department of Veterans’ Affairs that certifies your entitlement to Commonwealth health concessions
  • or have been granted Legal Aid
  • or are receiving youth allowance, Austudy or ABSTUDY payments
  • or are under 18 years of age
  • or an inmate of a prison
  • or legally detained in a public institution
  • or are otherwise in financial hardship

However, you should note that to be eligible for the reduced filing fee, if you are filing a joint application, both applicants need to meet the criteria to be eligible for the reduced filing fee (See Guidelines for Reduced Filing Fee for Divorce).

 

If you and your partner separate and you have responsibility obligations over dependent children, then you both should come to an official parenting agreement regarding the future arrangements of your children.

What is a parenting arrangement?

A Parenting Arrangement is a title given to the discussion and mutual parental agreement between separated parents or legal guardians around how your children will be looked after, now that you’re both apart.

Every family dynamic is unique, which is why there’s no one way to develop your Parenting Arrangement. This is why there are no strict guidelines about how parents or legal guardians should make an agreement to care for a child after a separation.

What is included in a parenting arrangement?

While there isn’t an official Parenting Arrangement template, it should include determining things like:

  • who picks up which child on what day
  • who has each child during school holidays
  • where each child lives at certain times of the year
  • who the children can spend time and communicate with
  • medical issues
  • cultural and religious practices
  • how the parents will communicate or make changes and so on.

How does a parenting arrangement work?

Generally speaking, it’s usually best for everyone involved if separated parents come to an amicable agreement, with terms that are realistic and practical, and focus on the needs and the best interests of each child.

How do you put parenting arrangements in place?

When arrangements for children are agreed upon between the separated parents, they can be put in place in one of three ways:

A Verbal Agreement

Some couples simply discuss how to implement their agreed parenting care arrangements for their children without putting the parenting agreement into writing.

A benefit of a verbal parenting agreement for the children’s ongoing care is that it offers a lot of convenience and flexibility for parents, as they can simply plan on an ongoing basis and discuss changes as needed.

However, the disadvantage is that a verbal parenting agreement is not recorded, which can lead to potential misunderstandings around times and dates. Verbal parenting agreements also cannot be legally enforced and can have potential problems if the parents are unable to communicate effectively or a dispute arises.

Parenting Plans

A Parenting Plan is when parents discuss their verbal parenting agreement and then put the details into a written and signed document.

A disadvantage of formalising a parenting care arrangement using this method is that a Parenting Plan is not legally recognised and enforceable by a Court.

It does, however, provide the parents with clarity and shows their intentions as to the agreed arrangements. It also allows for some flexibility as the Parenting Plan document can be edited if agreed on between the parents.

Consent Orders

A Consent Order is a parenting agreement plan that is signed by the parents and sent to the Court. If the Court considers the parenting agreement to be practical and in the best interests of the children, the agreement will become a legally recognised parenting order, also known as a Consent Order.

Neither parent is required to go to Court for the orders to be made. The paperwork needs to be submitted according to the instructions provided by your local Family Court.

A Consent Order is enforceable by the Court, which means that if a parent does not comply with the order, they run the risk of the Court issuing them with a fine, punishment or even imprisonment.

A Consent Order is usually drafted in a way that includes a provision for parents to change the terms of the agreement as they wish through dispute resolution. However, any changes must be agreed upon, otherwise you will need to apply to the Court for the orders to be changed.

If in doubt, seek legal advice about making agreements for the arrangements for children.

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