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The care your child and whether the care is equal between you and your former partner will be determined solely on the facts of each individual case.
If the Court does not think shared parental responsibility or equal time is appropriate due to risk of harm to the child, then they will make an order accordingly. It is a common misconception that parenting arrangements will automatically be a 50/50 arrangement. If the Court believes an equal arrangement is not in the best interest of the child or children, then they will order alternative arrangements. If equal time is not appropriate, then substantial and significant time will instead be considered.
It is important to be aware of the differences between parents having equal time and equal parental responsibility.
Equal shared parental responsibility refers to parents consulting with one another in making decisions relating to the child, such as education, upbringing, health and living arrangements.
Equal time refers to the amount of time the child or children physically spends with each parent. In making a decision regarding equal time, certain factors need to be considered to decide what is best for the child/children.
Negotiations will occur between your legal practitioner and your former partner’s legal practitioner in relation to parental arrangements and child support. In these negotiations, it is paramount to consider and only propose what is best for the child.
Your legal practitioner will work to draft parenting plans and consent orders that will reflect how the child will be cared for and reflect their best interests and safety.
Parenting plans are written plans that are signed and dated, but it is important to be aware that they are not legally enforceable. However, the Courts will have regard to the parenting plans when making their orders, and the contents of the parenting plans may be included in the official orders made by the Court.
Parenting plans are often used for parties who are not in high conflict situations, but still wish for their agreement to be in writing. These plans may be varied at any time by further written agreements, which are signed by both parties.
Consent orders are legally enforceable orders approved by the Court. These orders are only made if the Court believes it is in the best interests of the child to do so.
When making the orders, the Court may consider any existing parenting plans between the parties and may officially instate those agreements in the orders.
It is crucial to be aware that consent orders are final and cannot be amended without the Court’s consent. If you wish to vary your final orders, you must make another application to the Court and pay the relevant filing fee.
It is required you provide all relevant information such as school reports, the child’s medical reports and any relevant letters.
In order to resolve the dispute, it is crucial to take all necessary steps and make a genuine effort to come to an agreement. You will be directed to a dispute resolution service which will help facilitate discussion and assist in you and your former partner coming to an agreement. If an agreement is reached through this service, then consent orders will be made and will be signed by both parties.
If an agreement is not reached and cannot be reached through the dispute resolution method, then negotiations will commence between your legal representative and your former partner’s legal representative. If an agreement is still not reached, then you may file an Initiating Application for parenting orders with the Family Court or the Federal Circuit Court.
You may come to an agreement with your former partner in relation to child support payments. Arrangements may be made for periodic payments, non-periodic payments (such as school fees and health insurance), and lump sum payments.
Child support agreements are binding for the amount the parties have agreed to and cannot be varied. Since these agreements are binding, it is important to seek legal advice prior to entering into an agreement.
If you wish for the agreement to be amended, a new agreement must be entered into after expressly terminating the previous agreement.
It is possible to insert a clause into your Will relating to the guardianship of your child should you pass away. It is important to note, however, that the Court may go against these wishes if it will not be in the best interests of the child.
Parental orders themselves may also include provisions in the event where one parent passes away. However, if this has not been done, and the surviving party cannot accommodate the child full time, the surviving party may apply to the Court for to the child to live with a grandparent or other person concerned with the welfare of the child.
It is always recommended that matters be resolved in the preliminary stages and an agreement is reached. However, if you are unable to resolve the dispute in the preliminary steps, then applications will need to be made to either the Federal Circuit Court or the Family Court.
Always seek advice from your legal practitioner as they will know the process involved in going through the Court. The steps involved depend on which Court the dispute will be taken through.
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