Author: Vanessa Mathews

A family breakdown brings about many emotional issues, parenting arrangements are probably the most difficult to resolve.

• Where will the children live?
• When will each parent get to see the children?
• How long will each parent have with the children?

These questions form the basis of all parenting arrangements, but the key issue for the arrangements is what is in the child’s best interests?

Parenting arrangements after separation can be finalized by way of Consent Orders or a Parenting Plan.

The lawyers at Mathews Family Law & Mediation Specialists Melbourne have significant experience and expertise with regard to issues that affect children. We can help you and your family develop parenting arrangements that recognize your child’s best interests. We can help provide the stability your children needs and minimise the impact of the changes on their lives. Formalizing parenting arrangements is also beneficial where there is a high level of conflict and a limited ability for the parents to communicate amicably between themselves.

Sometimes arrangements are based on informal verbal agreements with your ex-partner, but in most cases it is best for these arrangements to be written and recognised by a Court. We consider it is best for parents to have made arrangements in advance for each parent’s time with the children, particularly for special events such as Birthdays, Easter and Christmas.  An agreement can help avoid disputes in the future about parenting arrangements for the children, reduce conflict and enhance security and stability for children.

Once agreement is reached we can draft Consent Orders so that the agreement is formally recognised by the Australian legal system.

If negotiation between the parties does not resolve all outstanding issues, we can assist you through arranging and assisting your participation in mediation. If an Agreement can’t be reached, or in the case of extenuating circumstances then Court processes might be required. Our highly experienced litigators will exercise care and compassion combined with the determination and expertise required to obtain the best results.

Mathews Family Law is a Melbourne family law firm.

Please contact us on 1300 635 529 to speak with a family lawyer from our law firm today. You can also send through your enquiry online now and we will contact you shortly.

If you have an order that the children live with you or spend time with you and the children have been taken or not returned, you need to apply to the Court for a recovery order. This order allows the police (both state and federal) to find and return your children to you.

If you do not have an order that the children live with or spend time with you, you need to apply to the Court for such an order, as well as a recovery order. This can be done simultaneously.

Sometimes, in an emergency, the Court may give these orders ex parte, that is, without the other parent being at court. If you are worried that the children might be taken out of Australia you should put the children’s names on the Airport Watch List. You will need to apply to the Court to place the children on the Watch List and send a copy of the application and any court orders made to the Federal Police.

If a parent moves away that move may affect the children’s ability to spend time with the other parent.

If there are court orders you need to check whether the move will breach the order. If it is likely you will be in breach if you move then you need to have the orders varied either by consent or by the Court. You must do this before you move.

Where there is a parenting plan or informal agreement for your children to spend time with the other parent, the Court could be asked by the other parent to issue an order which stops you from leaving.

If there are no existing Court Orders in place, you can move overseas if the other parent consents to you relocating.

If the other parent does not consent to the move you will need to obtain a Court Order.

If a parent moves away that move may affect the children’s ability to spend time with the other parent.

If there are Court Orders you need to check whether the move will breach the order. If it is likely you will be in breach if you move then you need to have the orders varied either by consent or by the Court. You must do this before you move.

If there are no Court Orders you will not be breaching any orders by moving. Where there is a parenting plan or informal agreement for your children to spend time with the other parent, the Court could be asked by the other parent to issue an order which stopping you from leaving.

You can move away if the other parent consents to you relocating. If the other parent does not consent to the move you will need to obtain a Court Order.

If you have a Court Order that the children live with you and the children have not been returned, you should try to talk to the other parent and see if you can agree to a return of the children.

If you can’t contact the other parent or they refuse to discuss the situation you can apply to the Court for a Recovery Order.

A Recovery Order is an order from the Court allowing the Federal and State Police to return the children to you.

Parents Australian law encourages parents to come to a parenting arrangement or parenting plan on their own.  Many parents, however, are unable to come to an agreement and end up turning to the courts to resolve their parenting dispute.  The court may make a “parenting order”, telling the parents exactly what the parenting arrangement must be.   These may be orders which the parents consent or agree to (consent orders) or the order may be imposed on the parents following a trial or court hearing.  Finally, there are cases that combine parenting orders by consent along with a parenting plan created by the parents.

The primary question the court will ask is what is in the best interests of the children.  The court will look at many factors to decide what is in the child’s best interests, but the two main considerations are the benefit of the child having a meaningful relationship with both parents against the need to protect the child and the need to protect the child from physical or psychological harm as a result of abuse, neglect or family violence.

Other factors the court might consider:  the child’s opinion, his or her relationship with each parent and other relatives, such as grandparents; the particular parent’s role in raising the child, each parent’s financial support, and the lifestyle of the parents.   But the law also allows a judge to consider any other fact or circumstance that the court thinks is relevant”, giving the court a good deal of discretion when giving a parenting order.

A good parenting plan should discuss the many possible surprises and changes that might occur  a parent relocates, a medical emergency, financial circumstances change but no plan can foresee every possible need for modification or adjustment.   Section 63(D) of the Family Law Act, 1975 allows a parenting plan to be “varied or revoked by agreement in writing” between the two parties.

If a parenting plan was registered with the court, and then one or both sides wish to modify it, court papers must be filed.  Contact an experienced family lawyer to find out how to modify a current parenting plan.

Australian law holds both parents responsible for their children.  Even when parents separate or divorce, both parents are obligated to take care of their children financially, providing them with all of their basic needs, education and health.  A parenting plan is an agreement between the parents of the children, laying out each person’s responsibilities, obligations and commitments.

Division 4 of the Family Law Act, 1975 details what may be included in a parenting plan, but the list is not exhaustive.  Generally, a parenting plan should include the division of responsibility for the children, whether or not there are third parties involved, maintenance for the children, how decisions are made, the forms of communication between the parents and between the children and the parents (when they are with the other parent), and ideally, how future disputes will be settled.  A primary goal of the plan is to lay out as many of the possible issues involved in parenting in order to allow for future changes and avoid going to court.  At all times, the children’s best interests should be kept in mind.

A good parenting plan is very detailed.  It lays out an annual schedule of visits, including who picks up and drops off the children.  A parenting plan also discusses how big decisions, like where the children will go to school or what religion they will be raised in will be made and by whom.  It should also give space for each parent to make certain decisions independently when the children are with them, ie what do they kids eat for breakfast or how much t.v. do they get to watch.

In order for the parenting plan to be legal, it must be: (1) written; (2) made between the parents; (3) signed by both parents; (4) dated and; (5) deals with the issues listed above and in section 63(C)(2) (link to this section).   A parenting plan is not legally binding, however, unless it is registered in court.