SEPARATION: CUSTODY AND OTHER CHILD-RELATED MATTERS
Form 11 Consent Orders
Whether it is financial matters or child-related matters, the best outcome often means an out-of-court settlement is reached without the need to commence legal actions.
Similar to financial matters , once an agreement about what parenting arrangement is reached the parties should record the agreement by way of a Form 11 application for consent orders.
Often, the key to avoid expensive and lengthy legal proceedings is to attend to the disputes and obtain sound legal advice at the earliest possible opportunity. Having a good understanding of your rights and responsibilities as a parent under the Family Law Act will go a long way in your negotiations with your ex-partner.
You do not have to wait until you are formally divorced before you can make a Form 11 Consent Orders Application for parenting orders. In fact, you can (and probably should) start negotiation with your ex-partner immediately after separation.
In your negotiation with your ex-partner, the interest of the child should be the sole emphasis.
Disputes on child related matters
It is far too common that parties to a marriage or de facto relationship breakdown neglected to have significant regards to the welfare of their children and subconsciously focused too narrowly on property division. In fact, the welfare and interest of the children should always be the primary concern in any relationship breakdown. If you and your ex-partner find the breakdown to be very stressful, it is not hard to imagine the children will find it extremely difficult to cope with.
In a case involving children or parenting issues, it is a requirement that the separating family must undergo a Compulsory Family Dispute Resolution before court proceedings can be commenced. For more information about Family Dispute Resolution, please see Family dispute resolution.
Under the Family Law Act, the term “child custody” is not used. Instead, it is referred to as “parental responsibility”. In deciding whether to make a particular parenting order in relation to a child, the Court must regard the “best interests” of the child as the paramount consideration. In deciding what is in the best interests of the child, the primary considerations are:
- the benefit to the child of having a meaningful relationship with both parents; and
- the need to protect the child from physical or psychological harm.
In addition, the Court will also consider things such as views expressed by the child, the child’s relationship with other persons (e.g. grandparents and siblings), likely effect of any changes in the child’s circumstances, the child’s background, the child’s attitude, any family violence etc.
The types of parenting orders you may seek from the Court include:
- who a child live with;
- who a child will spend time with;
- who a child will communicate with; or
- who has responsibility for major decision about the child.
A grandparent may also apply to the Court for parenting orders in relation to the grandchildren. The orders a grandparent may seek include orders for the grandparent to spend time and communicate with the grandchildren and in some cases (for example, when both parents are unwilling or unable to care for the child) orders that the grandparent has sole parental responsibility for the child.
In child related proceedings, it is common that a family consultant is involved. The aim of the family consultant is to reduce the adversarial aspect of the litigation. The family consultant can also provide evidence directly to the court. Also, the family consultant may work with the parties outside of the courtroom in trying to resolve the dispute.
(Compulsory) Family dispute resolution
In child related proceedings, the Court will not accept an application unless the parties had first attended family dispute resolution. Family dispute resolution comes in many forms, including services like:
- family counselling;
- negotiation; or
There are exceptions to the requirement for Family Dispute Resolution, for example, if your matter is urgent or family violence has occurred. In such cases, you may commence proceedings without first attending Family Dispute Resolution but you will need to file an exemption form with your application.
It is important to ensure that the dispute resolution provider is a registered Family Dispute Resolution Practitioner because you will need to obtain a certificate from the practitioner if the resolution is not successful. For more information about commencing child related proceedings, see Disputes on child related matter.
If an agreement is reached after the family dispute resolution, you and the other party may enter into a Parenting Plan or apply to the Court for a consent order.
Child support arrangements
If you are the primary carer of a child, you may entitle to receive child support from the other parent pursuant to the Child Support (Assessment) Act. The Child Support Agency is responsible for administering child support arrangements including calculating the amount of child support a parent should be receiving. Applying for child support assessment does not require court proceedings and the process is relatively simple, assuming you have the other parent’s co-operation.
The amount of child is calculated by the Child Support Agency using an administrative formula which takes into account the parents respective income, number of children, age of the children and their living arrangements. In some complex cases, the special circumstances of the children or the parents can be taken into account.
Alternatively, the parents may reach an agreement on the amount of child support to be paid. This agreement is call a child support agreement and must meet the requirements of the legislation in order to be binding.
Relocation of children
If you are the parent of a child and you want to move with the child and that move will likely to impact on the other parent spending time with the child, you should first try to discuss it with the other parent. If the other parent does not agree to your relocation, you may have to apply to the Family Court for a relocation order.
Cases involving relocation of children are often complex and the outcome is difficult to be predicted. In determining whether or not to grant a relocation order, the most important consideration the Court will take into account is what is in the best interests of the child. The Court will also examine what options or proposals each person has made for the arrangements for the child. You will also need to inform the Court as to why you need to relocate with the child.
If you move without a court order or without the consent of the other party, the Court may require you to return until the case is finalised. If there is an order preventing you from relocating, doing so without the court’s permission will be in breach of a court order and you may face punishments including imprisonment.
On the other hand, if your ex-partner relocates with the child without your consent or the Court’s permission and the move is likely to impact you spending time with the child, you may apply for an injunction in the Family Court stopping the relocation.
If you are responsible for the child’s care and the other parent takes the child away without your permission or fails to return the child to your care pursuant to an agreement/court orders, you may apply for a recovery order which the Court can require a child to be returned to you.
In determining whether or not to make an order for recovery of the child, the Court looks at what is in the best interests of the child. If a recovery order is made, the Court will generally direct the order to the Australian Federal Police for the recovery of the child. Given that having the police involved is likely to be very stressful to the child, the Court will not grant a recovery order lightly.
If the matter is urgent (e.g. you have immediate concerns about your child’s safety), the application for recovery order can be made on an ex-parte basis and the Court may be able to hear your case on the same day as you filed your application.
If the child has been taken overseas without your consent or without the court’s permission, you may make an application in the Australian Government Attorney-General’s Department for the return of the children if the country to which the child was taken is a signatory to the Hague Convention. If this happens to your child, you should seek urgent legal advice.
An injunction is an order made by the Court to restrain the other party from doing certain acts or things. Under the Family Law Act, the Family Court has the power to grant an injunction to protect the welfare of a child. The injunction may be:
- for the personal protection of the child, the child’s parents or other carers;
- to restrain a person from entering or remaining in a place;
- restraining a person from relocating with the child or taking the child overseas.
Often, an application for injunction has to be made urgently and on an ex-parte basis.
For injunction in financial matters, please see Disputes on financial matters.
When the Court makes orders (including orders made by consent), they must be followed by the parties. If your ex-partner refuses or fails to follow parenting orders without reasonable excuse, it is a contravention of the orders and you may make an application for contravention. An application for contravention informs the Court that the orders made by the Court are not being followed and upon satisfying of the contraventions, the Court may make the other person:
- pay any expenses that you had incurred as a result of the contravention;
- pay legal costs;
- do community service work;
- be put on a bond;
- pay a fine; or
- face imprisonment.
Usually, you will need to invite the other person to Family Dispute Resolution before commencing contravention proceedings.
Alternatively, you may make an application seeking enforcement of the parenting orders. In enforcement proceedings, the other person will not be punished for breaching the parenting orders and the orders will not be changed by the Court, but the Court may make an order that will compensate you such as allowing more time for you to spend with the child.