Dealing with whom the children shall live with and spend time with (formerly custody and contact or access) after separation can be an emotionally difficult time. Michelle Meares, Family Lawyer, Gosford will provide you with practical, down to earth advice with care and compassion. Call now to book your Family Law Advice initial consultation at a special reduced rate.
Children’s Care Arrangements
It makes no difference if the parents were defacto or married or not even in a relationship. The Family Law Act 1975 stipulates that the best interests of the child are the paramount consideration in relation to care arrangements for children.
Which parent is responsible for the child after separation & divorce?
There is a presumption of equal shared parental responsibility for the child. Both parties’ consent is required for major long term decisions, for example where the child will live, education, religion, change of name, medical treatment and passport applications. The term “custody” is no longer used in relation to children and is now referred to as with whom the child shall “live with” and “spend time with”.
Does a child have the right to spend time with their Grandparents?
The Family Law Act 1975 says “children have a right to spend time on a regular basis and communicate on a regular basis with both of their parents and other people significant to their care, welfare & development” (including Grandparents or other relatives).
Although Grandparents do not have an automatic right to see their grandchildren, it may be in the best interests of the children to support a continued relationship between children and their extended family. Sometimes when there is a relationship breakdown, it is common for Grandparents to only see their grandchildren when they are in the care of the son or daughter of the Grandparents. As a child is unable to enforce their right to spend time with their Grandparent, if the child’s parent is not supportive of the child spending time with his/her Grandparents, it will be up to the Grandparent to take action to do so. Grandparents are required to attend mediation with the parents in order to attempt to come to an agreement before any Court proceedings may be commenced. If you are a Grandparent and have questions about spending time with your grandchildren, call Kate Walker, Accredited Specialist Family Law on 4324 7699.
What if the parties can’t agree on care arrangements?
The Family Law Act 1975 requires that the parties attend family dispute resolution (there are exemptions to this requirement). This is a mediation session where the parties discuss arrangements with a Family Dispute Resolution Practitioner. If there is no agreement then a party may file an application with the Court seeking orders from a Judge.
The parties also have the option of attending Lawyer assisted mediation. The benefit of this mediation is that any agreement reached between the parties can be formalised by way of Consent Orders at the time of the mediation.
Regardless of whether an agreement is reached the Family Dispute Resolution Practitioner will issue a certificate. This is a necessary requirement before a party can seek assistance from the Court. However, these certificates are only valid for 12 months.
Should the parties reach an agreement, some Family Dispute Resolution Practitioners assist in the drafting of a Parenting Plan.
What is a Consent Order?
Should the parties want enforceable Court orders formalising the “live with” and “spend time with” agreement reached, an Application for Consent Orders and Consent Orders can be filed with either the Family Court or Local Court.
A Consent Order must be made with consent of the parties and can only be varied by a subsequent Parenting Plan agreed to and signed by the parties OR an order from the Court.
Consent Orders cannot include any child support arrangements between the parents.
The advantage of a Consent Order is that it can be enforced against a party who breaches the orders.
Consent Orders are best drafted by a Family Law Solicitor.
What is a Parenting Plan?
A Parenting Plan is a written document that sets out the agreement reached between the parties with respect to “live with” and “spend time with” arrangements for the children.
Parenting Plans can be changed with the agreement of both parties as the children grow and circumstances change.
A Parenting Plan is not enforceable by a Court but may be relied upon in the event a party files an application with the Court seeking parenting orders.
How do I get Child Support?
The Child Support Agency is a government body that assesses and has the ability to collect child support owing from either parent.
It is a complicated system and the amount payable is determined by a number of factors including how much time the children are spending with each parent, the ages of the children and the incomes of each parent. For more information contact the Child Support Agency
Parties can also come to an agreement with respect to child support and a Child Support Agreement may then be lodged with the Child Support Agency. This document is usually prepared by a Family Law Solicitor.
Family Violence and Child Abuse
The definitions of family violence and child abuse are contained in the Family Law Act 1975.
Family violence is comprehensive and not only includes physical and psychological harm, it also includes actions like derogatory taunting, damage to property or pets, denial of financial autonomy and depriving a person from family or friend connections. Any allegation of family violence is a major factor taken into account when a Court is considering a parenting order and in some instances, family violence is a factor that can prevent a party having any contact with a child.
The definition of abuse includes serious neglect of a child, assault including a sexual assault, causing a child to suffer serious psychological harm or when a child is being subjected to, or exposed to, family violence.