With international travel hopefully not too far away, you and your ex-partner may want to start thinking about making arrangements for future holidays. One of the most important factors to consider is your child’s passport.

It is important that you understand the rights you have after separating from your partner, particularly when your child is involved. Obtaining a passport for your child works differently after you separate. This article will explain the process and your obligations as a parent post separation.

Parental responsibility is described by the Australian Passport Act 2005 as someone who is the child’s parent, lives with the child or has responsibility for the child, and has guardianship or custody of the child.

As outlined in The Australian Passport Act 2005, for a child to be issued with a passport, either the consent of both parents must be obtained or a State, Territory or Federal court has granted permission for the child to travel, live with or spend time with someone outside of Australia.

If you are worried that your ex-partner will attempt to apply for your child’s passport without your consent, you may want to apply for a Child Alert with the Australian Passport Office. A Child Alert requires the Department of Foreign Affairs and Trade to give special consideration to your child’s passport application. However, it is important to note that a Child Alert does not guarantee that your child will not be able to obtain a passport or travel overseas. You may also wish to seek a court order to prevent the issuing of your child’s passport, to make changes to the handling of your child’s passport if it is already issued, or to prevent your child from travelling overseas entirely.

On the other hand, if you are wanting to apply for your child’s passport and your ex-partner does not consent, there are also steps you can take. You can apply for a court order requiring your ex-partner’s consent for the passport. Your situation may also meet certain circumstances present in The Australian Passport Act 2005.

  • Your ex-partner who is non-consenting is missing, presumed dead or cannot give consent due to being medically incapable;
  • There is a family violence order made against your ex-partner;
  • No contact has been made with your ex-partner for a significant time period;
  • An order has been made under child welfare law that gives parental responsibility to the parent who is consenting rather than the parent who is non-consenting;
  • A family crisis has resulted in urgent need for the child to travel overseas; or
  • The welfare of the child would be drastically impacted if overseas travel was not allowed.

If you do meet any of these circumstances, you and your child may be able to travel overseas without the consent of your ex-partner. However, it is important to remember that court procedures can take time, so you should not book international travel until any issues present with your child’s passport have been fully resolved.

If you are concerned that an issue with your child’s passport may arise after separation, No Lawyers’ Family Law Resources can help you understand your rights and options moving forward.

Considering the legalities of your relationship can feel a little weird and clinical; after all, it’s all about love, right? That said, there are moments in every long-term relationship when you need to be aware of your legal rights and obligations – be it for tax purposes, health reasons or during a break-up situation. The legal recognition of same-sex relationships has evolved rapidly during the last decade, so it’s fair enough if you are feeling a little confused regarding your rights.

However, it’s actually not as complicated as it might seem. Here’s what you need to know:

Same-Sex Relationships are fully legally recognised.
Same-sex marriage has been legal in Australia since December 2017; however, even if you are not married to your partner, your relationship has the same legal validity as any other de facto relationship. You can make your de facto relationship extra official by registering a civil union or domestic partnership, if you choose. In any case, you have the same legal rights and obligations as heterosexual couples.

Rights and Obligations While You’re in a Relationship
Since 2008, the Australian government no longer discriminates against same-sex couples and their children when it comes to everyday legalities. That means if you are living together, sharing expenses and familial responsibilities (i.e. shared children, pets, mortgage etc.), your relationship is subject to the same laws as any other de facto relationship or marriage. That means:

  • you have to report to social services as a couple (i.e. disclose your partner/wife’s income when applying for any government assistance)
  • you are entitled to include your partner/wife in your will and as a beneficiary of your superannuation
  • both of you will appear on your child/children’s birth certificate, registered as “mother” and “parent”, if they were conceived through invitro fertilisation
  • you can grant your partner/wife power of attorney regarding your affairs and vice versa
  • you can grant your partner/wife statutory health authority and vice versa
  • you have equal parental responsibility
  • you can sponsor your partner/wife in case of immigration and vice versa
  • you are able to adopt and/or foster children

Rights and Obligations in case of Separation or Divorce
If you are in a same-sex marriage, you have the exact same rights and responsibilities when going through a divorce as any other married couple. You will have to go through the process of property division and, if you have children, make custody arrangements suitable to your respective situations.
It used to be a different story for de facto relationships; however, since 2009 de facto couples separating may apply for a property settlement provided:

  • they have been living together for two years or more
  • one partner has contributed significantly to the joint property (financial or otherwise)
  • you have shared children

In case of separation/divorce you and your partner/wife will both still have parental rights and responsibilities, provided you both appear on the child/children’s birth certificate.

If domestic violence has occurred during your relationship/marriage, you can apply for domestic violence orders and are entitled to protection and legal representation.

 

 

Ending a relationship is a difficult time in anyone’s life, whether you are married or in a de facto relationship.

A de facto relationship involves two people (including same-sex) who aren’t married but have lived together as a couple for at least two years without separation.

In order to be in a de facto relationship, there must be evidence of a ‘genuine domestic relationship’. Some factors that indicate this exists are the degree of financial dependency, whether a sexual relationship exists, the degree of commitment to sharing your lives, ownership of your property and caring for children if any exist.

Once these factors are determined, the court can make orders regarding the division of property and assets.

De facto couples are granted many of the same legal rights as married couples. Under the Family Law Act 1975, de facto couples are entitled to make prenuptial agreements about their property. De facto couples are also able to apply to the court for property settlement, however the application must be made within two years of the date of separation.

You also have the right to apply for spousal maintenance from your de facto partner if you feel you cannot adequately support yourself. The outcome will also depend on your partner’s ability to provide financial support, your age and your ability to work.

If you are ending a de facto relationship, it is always beneficial to seek legal aid, particularly if children and joint property or assets are involved.

To end a de facto relationship, you do not have to un-register your relationship or receive a separation certificate, there must simply be an intention to separate communicated to the other party. Similar to married couples, this can then be actioned by one party moving out, or remaining separated under the same roof.

It is not uncommon for arguments or disagreements to arise during the separation process. If you and your partner are struggling to come to terms with your de facto separation, it can be helpful to seek legal assistance.

No Lawyers’ Family Legal Resources aim to guide you through the process of ending your de facto relationship and provide tips on how to transition to the next chapter of your life.

Ending a relationship can be an emotionally draining experience for anyone, however if children are involved the process often becomes even more difficult.

Many couples believe that after they separate, their child will be able to choose who to live with when they reach a certain age. However, under the Family Law Act, there is not a particular age that a child can make these decisions.

While the child’s age is taken into consideration by the court when determining their living arrangements, there are 16 other factors that ultimately form a decision that will put the child’s best interests at the forefront.

The two main factors the court will consider are the child having a solid relationship with their parents and both parents being able to shield the child from harm. Where your child wants to live is therefore not one of the court’s primary considerations as this may not be in line with their best interests.

The court will however grant a certain weight to your child’s wishes, depending on their maturity level, understanding of the situation, and whether or not they have been influenced by a particular parent.

For example, if a child says they wish to stay with one parent because they are a better cook, the court will apply limited weight to this for the final decision. However, if a child wants to stay with one parent because their other parent is violent towards them, the court will consider this to be in the child’s best interests, which will influence the decision.

Your child can be evaluated by a family consultant or a court expert to determine these factors and provide a thorough report that will assist the court to understand what is in the child’s best interests based on their individual circumstances.

It is recommended that you attempt to organise parenting arrangements without requiring assistance from the court. No Lawyers’ Family Law Resources aim to assist you with this process and provide information necessary to guide you to a decision that will benefit you and your child.

However, if you have just undergone a separation and are struggling with your child’s wishes, you may wish to consult legal advice so you can be confident you are making the right decisions for you and your family.

 

Separation can be a stressful and emotional experience, particularly depending on the living circumstances of each person after the break up.

After separating from your partner, you may decide to move out and live somewhere else, or you may choose to remain separated under one roof. This article will help you understand how your situation might be affected by living with your partner once you have separated.

Being separated under one roof means you and your partner are still living at the same residential address despite no longer being in a relationship.

In 2019, almost 39,000 people were registered with Centrelink as being separated under one roof in Australia, so it’s likely more common than you think.

There are various reasons a couple may wish to do this, for example, if they are waiting to finalise their divorce or financial settlement.

Couples may also wish to save money by remaining in the one house, or live together for the sake of the children.

Whatever the reason you have for being separated under one roof; it is important to seek legal advice so you are well informed on the legal implications this living arrangement may incur.

The legal date of the separation is important if you are going through a divorce, and being separated under one roof may make it difficult to determine the specific date.

In order for a divorce to be granted, a couple must have remained separated for twelve months and one day.

The separation date is also important for de facto couples who have two years from the date of separation to apply for a division of property.

If you have been separated under one roof, you must prove to the court that you have made your partner aware of your intent to remain separated.

You should move out of the bedroom you previously shared, alert your friends and family to your changed circumstances, and undertake certain activities on your own.

It is also important to keep track of any relevant documents or changes you have made to convince the court of your separation.

The court will consider all of these elements, such as changing your finances, holiday arrangements or social activities to determine if you really have remained separated despite living under one roof.

This is known as establishing a ‘consortium vitae’ and is essential to begin the division of assets and liabilities and to finalise the divorce.

If you have just gone through a separation and are feeling stressed or anxious about living under the same roof as your partner, the legal firms listing in the No Lawyers Support Services can help. They can explain the implications of the law to your individual situation and provide expert advice so you can feel confident in your decisions and actions moving forward.

 

 

Breaking off a relationship or a marriage can take an emotional toll and is undoubtedly one of the most difficult experiences a couple or family can endure.

If you have just broken up with your partner or spouse, it is important to understand the difference between divorce and separation so you can move forward without encountering any unnecessary setbacks.

This article will provide clarity on the difference between the two, and what you can expect throughout the process.

Ending a marriage or a de facto relationship is considered a separation under Australian family law.

If you no longer live together as a couple, you are separated, however it is also possible to be separated under one roof in certain situations. This means you and your partner are still living at the same residential address despite no longer being in a relationship.

Either party may initiate the separation, or both parties may come to the decision together.

You are not required to register your separation; however, you may wish to inform government agencies such as Centrelink or Medicare or make arrangements for any shared bills, debts or bank accounts you manage as a couple.

It is recommended couples undergoing a separation consult a family lawyer to receive specific, clear and tailored advice moving forward.

Divorce occurs after a couple has separated. It is the legal ending of a marriage that can only be obtained if you have been separated from your spouse for twelve months and one day in order to prove your marriage cannot be salvaged.

The family court will assess your separation based on the circumstances of your individual situation.

Divorce is a ‘no fault system’ under Australian law, which means you do not have to provide a reason for the breakdown of the marriage.

If you have separated from your spouse, you are not legally required to divorce, but you should consider seeking advice from a family lawyer so you can be informed on the legal implications that may arise if you do remain married.

It is also important to understand that divorce is a separate process from property settlement and parenting arrangements that must be made after a marriage ends.

Whichever pathway you choose to take should be decided based on you and your spouse’s individual circumstances. There are a number of options to progress the separation, and if you are confused or concerned about what is right for you, the Family Legal Resources of No Lawyers can provide advice to help you move forward and move on with your life.

You might have heard about spousal maintenance when discussing property settlement arrangements or divorce in general.

Spousal maintenance can either make you responsible for financially supporting your former partner, or ensuring you receive financial assistance from your ex-partner.

This is a complex situation. So, to understand how it works, here is some important information about spousal maintenance.

What is spousal maintenance?

The Family Court of Australia defines spousal maintenance as “financial support paid by a party to a marriage to their former husband or wife, or by a party to a de facto relationship that has broken down to their former de facto partner, in circumstances where they are unable to adequately support themselves.”

In short, spousal maintenance is like child support – but for adults.

It works by giving your former spouse or partner the means to maintain their needs: either by providing periodic payments for an amount of time, a lump-sum payment or a transfer of assets.

How to know if you are entitled to spousal maintenance?

Spousal maintenance only occurs if the paying spouse or partner is reasonably able to do so and only if their former spouse or partner is unable to support themselves for any of the following reasons:

  • Having the care of a child (who is not yet 18 years old) of the marriage or de facto relationship
  • They have an age, physical or mental capacity that hinders the person from obtaining and maintaining meaningful employment
  • Any other adequate reason stated in Section 75(2) of the Family Law Act 1975

For de facto couples, spousal maintenance may be applied for if the relationship broke down after 1 March 2009, provided certain criteria has been met.

When making decisions for spousal maintenance, the Court takes into consideration the matters discussed in Section 75(2) of the Family Law Act 1975 (“the Act”) for married couples and Section 90SF of the Act for de facto couples.

Generally speaking, these are the key criteria for both married and de facto couples that the Court uses when assessing a person’s entitlement for spousal maintenance:

  • The age and state of health of each person
  • The income, property and financial resources of each person
  • the physical and mental capacity of each person to gain appropriate employment
  • Whether either person has care or control of a child of the relationship
  • The commitments of each person that are necessary to enable that person to support either themselves, a child or another person they have a duty to maintain
  • The responsibilities of either person to support any other person
  • The eligibility of either person for a pension, allowance or benefit
  • A standard of living that is reasonable in the circumstances
  • The extent to which payment of maintenance would increase the earning capacity of the payee spouse or partner by enabling that person to undertake a course of education, training, establish themselves in a business or obtain an adequate income
  • The effect of any proposed Order on the ability of a creditor to recover a debt from a person of the marriage or de facto relationship
  • The extent to which the payee spouse or partner has contributed to the income, earning capacity, property and financial resources of the other person
  • The duration of the relationship and the extent to which it affected the payee spouse or partner’s earning capacity
  • The need to protect a person who wishes to continue that person’s role as a parent
  • Financial circumstances relating to cohabitation with another person
  • The terms of any Court Order made or proposed to be made concerning the property of the couple, including any child support that a person has provided, is to provide, or might be liable to provide in the future for a child of the relationship
  • Any fact or circumstance which, in the opinion of the Court, the justice of the case requires to be considered
  • The terms of any financial agreement that is binding on a person of the marriage or de facto relationship

Keep in mind that the former couple’s standard of living is not an obligatory factor, but just more of a consideration.

It’s actually a misconception to assume that both people are entitled to the same standard of living as when they were together.

What are the 3 types of spousal maintenance?

There are 3 types of spousal maintenance which a separated person can apply for:

Urgent maintenance

The Court can make an Order for urgent maintenance pending the finalisation of the proceedings if:

  • A person is in immediate need of financial assistance; and
  • if it is not practicable in the circumstances to determine immediately what Court Order, if any, should be made.

Interim Order for maintenance

This is a Court Order that obliges the payee to pay spousal maintenance to the other person until a further Order is made or final settlement has been achieved.

Final Order for maintenance

This is a Court Order for spousal maintenance which forms part of the final settlement and is generally for a specified time or a lump sum amount.

When do maintenance orders become terminated?

In the case of married couples, Section 82 of the Family Law Act 1975 states that an Order for spousal maintenance will end during any of these situations:

  • The person receiving maintenance dies
  • The person liable to make payments under the Order dies (unless in certain circumstances where the Order is expressed to be binding upon the personal representative of the deceased)
  • The person receiving maintenance becomes married again (unless in special circumstances)

These factors are also the same for de facto couples, as detailed in Section 90SJ of the Family Law Act 1975.

Are there time limitations in the application for spousal maintenance?

For married couples, the application must be brought to the Family Court or Federal Circuit Court within 12 months of the date of a divorce order becoming final. For de facto couples, on the other hand, the application for spousal maintenance must be brought before the Court within 2 years of the date of separation.

The Court has the right to refuse the spousal maintenance application if this time has passed.

However, it is possible to permit an application for spousal maintenance to proceed out of time – given, of course, the Court is satisfied that:

  • One partner or the child would suffer hardship
  • If the applicant would have been unable to support themselves without an income-tested pension, allowance or benefit at the time of making the application

On application by a person, the Court has the power to modify spousal maintenance orders at any given time.

To make amendments in a Spousal Maintenance Order, the following conditions must be met since the order was made or last varied:

  • The circumstances of one or both persons have changed
  • At least 12 months has elapsed since the Order was made or last varied and the cost of living has changed enough to justify modifying the Order
  • Where the Order was made by consent, the amount payable under the Order is not proper or adequate
  • For an Order binding on a personal representative of a deceased estate, the circumstances of the estate justify modifying the Order
  • Material facts were withheld from the Court, or false material was given to the Court when the Order was made or last varied

If in doubt, always seek legal advice about spousal maintenance.

What happens to your kids after a divorce or separation? Who bears the responsibility of making important decisions in their lives?

Well, in many cases, it’s actually the Family Court that decides if it’s best for your children to have both parents share parental responsibility or whether just one parent have sole parental responsibility.

Let’s define parental responsibility first.

Parental responsibility refers to all the duties, powers and authority the law gives parents to make long-term decisions for your children.

These laws take into account considerations such as plans and actions regarding each child’s well-being including their education, medical treatment, lifestyle and home life.

What is considered a major long-term decision?

A long-term decision regarding children includes essential issues that have a significant influence on the life of children such as their care, welfare, upbringing and development.

Often, such major long-term decision regarding parental responsibility involves:

  • Name – What will the child be called? Who gets to register their name?
  • Education – Where will the child  go to school? What kind of education is best?
  • Religion – What kind of beliefs should the child be exposed to?
  • Health – The child having an operation or significant medical treatment?
  • Home and relocation? – Where will the child  live? Can the child will leave the country or not?

This list can extend as your children grow.

For instance, other decisions which parents like you might need to address in the future include recreational activities or psychiatric or psychological treatment.

What happens when you and your former partner have equal shared parental responsibility?

For equal shared parental responsibility, both parents have a say in making major long-term decisions. It means you and your former partner need to consult each other and make a genuine effort to arrive at a joint or mutual decision.

In other words, you have a joint parental responsibility to care for your children.

How about sole parental responsibility?

Sole parental responsibility, on the other hand, is a parental responsibility order that allows for only one parent to make major long-term decisions for children.

Sole parental responsibility may be considered appropriate in situations where:

  • There has been abuse or there is a risk of abuse to the children
  • A parent has perpetrated family violence against the children, or the children have been exposed to family violence
  • There is a risk of harm to the children
  • It is impractical for both parents to share decision-making for the children
  • There is an inability of the parents to communicate to such an extent that the children would be affected because decisions would likely to be unable to be made when necessary
  • A parent is not contactable
  • A parent has chosen to be absent from the children’s life or chosen not to consult with the other parent in making decisions

What is the common presumption about equal shared parental responsibility you should know?

In cases where there are no parenting orders or plans in place, it is presumed to be in the best interests of your children for both their parents to have equal shared parental responsibility.

If a parenting matter is brought before the Court, the presumption is also applicable unless the Court orders otherwise.

Such presumption stands to encourage positive co-parenting – allowing you and your former partner the ability to be involved together, consult with each other and have an equal contribution in the long-term decision making of your children.

Take note, however, that this presumption of equal shared parental responsibility only works for the direct parents of the children. Nevertheless, a person who is not a parent of a child can still apply to the Court for parenting orders.

When is the presumption of equal shared parental responsibility not applicable?

The presumption of equal shared parental responsibility comes with exceptions. It can’t be implemented if there are reasonable grounds to believe that a parent (or person who lives with a parent) has:

  • engaged in abuse of the child or another child who was a member of the parent’s family
  • engaged in family violence
  • when making an Interim Order, the Court considers it would not be appropriate to apply the presumption
  • the Court is satisfied it is not in the best interests of the child

What about equal care arrangement?

Once a Court Order has been made for equal shared parental responsibility, you must keep in mind that the presumption of equal shared parental responsibility relates only to the allocation of parental responsibility – not the amount of time the children should spend with each parent.

A Court will not issue a Parenting Order for the children to spend equal time with both parents or have an equal care arrangement, simply because they have made a Court Order for equal shared parental responsibility.

However, if an Order is made for equal shared parental responsibility, the Court must consider these factors:

  • Whether the children spending equal time with each parent is in their best interests
  • Whether the children spending equal time with each of the parents is reasonably practicable
  • Whether the children spending substantial and significant time with each parent would be in their best interests
  • Whether the child spending substantial and significant time with each parent is reasonably practicable

If in doubt, always seek legal advice about parental responsibility.

Separation and divorce can be a confusing time for everyone. Emotions are running high and the stress can make it a tough time to make decisions, especially when it comes to parenting arrangements.

During times like this, it’s easy for parents to get caught up in negotiating the terms involved in parenting plans and parenting arrangements; but at the end of the day, the most important thing to consider is what’s in the best interests of a child.

The Family Court system defines two types of parenting arrangement considerations to factor in when it comes to a child’s best interest: primary considerations and additional considerations.

What are the primary considerations in parenting arrangements?

  • the benefit of the child having a meaningful relationship with both parents; and
  • the need to protect the child from physical or psychological harm or being subjected or exposed to abuse, neglect or family violence.

As you can see, the wellbeing and protection of the child’s immediate needs are the primary considerations the Court will consider when they are making decisions around parenting arrangements and Court Orders.

Because of this, the Court places greater emphasis on primary considerations.

What are additional considerations in parenting arrangements?

The Family Court has additional considerations that it takes into account, such as the child’s personal preferences and relationships as well as emotional, intellectual and physical needs.

As the name implies, these are additional considerations to a child’s immediate well-being – however, they’re still relevant in Parenting Agreements and Court Orders.

These can include:

  • any views and wishes of the child that the Court believes are relevant in a separation, such as a child’s maturity and level of understanding of the situation
  • the relationship between the child and each individual parent
  • the relationship between the child and other significant people in their family life (such as grandparents, step-parents or relatives)
  • each parent taking up the opportunity to: participate in making major long-term decisions about the child, spending time with the child and communicating with the child
  • each parenting fulfilling their obligations to nurture and look after the child
  • the likely effect of any changes in the child’s circumstances, including separating the child from: either parent, and any other significant person (such as grandparents, step-parents or relatives)
  • the Court must also consider whether the practical difficulty and expense will significantly impact the child’s right to maintain a relationship with both parents regularly
  • the Court will also consider the capacity of each parent or other significant person in their life, in their ability to provide for the physical, emotional and intellectual needs of the child
  • the child’s maturity, gender, lifestyle and background
  • the parents’ maturity, gender, lifestyle and background
  • if the child is of Aboriginal or Torres Strait Islander: the child’s right to enjoy their culture; and the likely impact any parenting orders will have on that right
  • the parent’s attitude to the child and responsibilities of parenthood
  • any family violence involving the child or a member of the child’s family
  • if there is, or has been a family violence order: the nature of the order, the circumstances in which the order was made, any evidence in those proceedings, any findings made by the Court in those proceedings; and any other relevant matter
  • making an order that would be least likely to lead to further Court proceedings; and
  • any other fact or circumstance that the Court thinks is relevant.

These factors are relevant when determining a child’s best interests in a separation.

While the Court places more weight on primary considerations, these additional considerations are still important in Court Orders and Parenting Arrangements.

Everyone’s situation is unique, which is why the Court tailors its decisions around these factors based on individual circumstances. However, the child’s best interests will always be the main focus during a separation.

If you’re unsure, seek legal advice about your parenting arrangement, separation or divorce.

Going through a divorce or legal separation is already an overwhelmingly emotional experience. You also need to deal with negotiations regarding property settlement.

However, one of the most difficult parts of this process is trying to settle on the ideal parenting arrangements for your children.

It’s easy to get confused or feel discouraged due to unreliable myths you often hear people say about parenting arrangements and parenting orders.

To help provide some clarity, here are the 10 common myths around parenting agreements during a separation or divorce.

The mother always has more power

The Court will always prioritise what’s best for your children’s interests when it comes to deciding on who they should live with. As such, it’s wrong to assume the Court will place a bias on gender or that mothers have the upper hand in this matter.

Remember – there are no laws that state children should live primarily with the mother rather than the father after a separation.

Parenting plans are binding

Parenting plans refer to the agreements signed off by you and your former partner, but which are not submitted to the Court for approval and formalised into Consent Orders.  These are not legally binding and cannot be enforced by the Court if they are breached.

Parenting Orders, whether made by consent or decided by a Judge, are the only formal document that can be enforced by the Court. Therefore, serious consequences and penalties such as payment of fines, compensation, community service, or imprisonment can be ordered against either parent due to a breach.

Getting a Court Order is the solution if both parents can’t agree

You can’t go straight to Court and demand for the Judge to make an immediate Order just because you and your former partner or spouse can’t reach a compromise for your parenting matters.

There is a significant amount of time and work involved in preparing court documents, and it’s also common to experience delays for several months before your case may even be listed for the first hearing.

Unless it’s urgent or there is a real risk of harm or abuse to the children, parents must focus on a more serious attempt of mediation – making a genuine effort to reach an agreement before court proceedings can be filed.

There is no need to consult with the other parent about decisions affecting the children

If there are Parenting Orders for joint parental responsibility, you are required to consult and negotiate with your former partner or spouse when making major long-term decisions for your children. You also need to disclose important information like your children’s medical appointments, school information and travel plans.

You could be in breach if you do not comply with Parenting Orders that have been made by the Court. The other parent may file a contravention application against you, which could then have serious consequences resulting in penalties being imposed by the Court.  The other parent may also apply to the Court, and be successful, in varying the  existing Parenting Orders, on terms which you may not agree with.

Even if there are no Parenting Orders, the Court may still decide that you should have consulted the other parent about major long-term decisions such as schooling and education, religion, serious medical appointments or relocating with the children.

For example, if you unilaterally change the children’s school or relocate with the children so that it impedes on their relationship with the other parent, the Court may make an Order that the children be returned to their previous school or that the children be returned to live within close proximity to where they were living before.

Your children can make their own decisions about where they want to live once they turn 12 years old

Your children can express where they wish to live, but this is just one factor amongst many things the Court will take into consideration when determining the appropriate parenting arrangements for them.

The law sets no exact age at which children can decide for themselves where they want to live or stay. As such, the Court takes into account their age, maturity and reasons and understanding of the decision when considering their preferences.

Divorce applications deal with parenting arrangements

Your divorce application only deals with obtaining your divorce so that you are no longer legally married. However, it doesn’t automatically put parenting arrangements in place.

Ensuring a Parenting Order is made, either by consent or by a Judge, is the key to formalising your parenting arrangements to make them binding and enforceable.

There is nothing you can do when the other parent is bad-mouthing you

This is not true. You can actually seek orders that prevent your former partner or spouse from denigrating or insulting you or your family members or other significant persons to your children.

It’s not necessary to follow Court Orders

Serious ramifications can result from breaching Court Orders. Since the Court holds the power to issue penalties ranging from fines up to imprisonment, it is not wise for you to breach Court Orders – especially without seeking legal advice first.

A Parenting Order will override any Domestic (Family ) Violence Orders

This is not always the case.  Under Australian domestic violence laws, the local Magistrates Court which deals with family violence matters must consider any existing parenting orders. Nevertheless, it does not mean that the domestic violence Courts will limit their powers so as to make Protection Orders (i.e. Domestic Violence or Family Violence Orders) that are consistent with the existing parenting ones, particularly when the safety of your children is at stake.

The local domestic violence Courts may revive, vary, discharge or suspend parenting orders.

The Family Law Courts must take into account the child’s best interests being the paramount consideration, and to the extent possible ensure the Order is consistent with any Family Violence Order and does not expose a person to an unacceptable risk of family violence.  The Order may include safeguards the Court considers necessary for the safety of the children or persons affected by the Order.

When a Protection Order contradicts a Parenting Order, you may need to apply to the Family Law Courts to obtain a declaration that that the Parenting Order is inconsistent with an existing Family Violence Order and the Family Violence Order is invalid.

Not spending time with children means there’s no need to pay for child support

If you are the biological parent of your children, you bear the duty to maintain and provide financial support to them, regardless of whether you’re spending time with them or not. You  need to offer financial assistance, even if the other parent prevents you from spending time with your children.

The amount you’ll pay is assessed and determined by the Child Support Agency based on factors such as how much overnight time each parent has the children in their care for, the earnings of each parent and the age and needs of each child.

If in doubt, always seek legal advice about parenting matters.

As featured on