Arrangements for care of children, after separation and divorce
While there is no obligation for parents to go to Court, it becomes necessary if you want to formalise your parenting arrangement, or if you cannot agree as to the care and maintenance of your children.
To commence court proceedings in relation to parenting matters the parties must first have attempted family dispute resolution (“FDR”) and be in possession of a valid FDR certificate (60i certificate) issued by the FDR provider.
If you cannot agree on some, or all of the issues related to caring for your children, then the matters in dispute will be decided by the Court. Mossensons can advise you as to whether you need to go to Court, and to help you and the other party try to resolve the issues in dispute.
You can also choose to formalise the arrangement entering into Consent Orders, which are legally binding and enforceable.
A Parenting Plan is an informal agreement between parents, carers, guardians and relatives about arrangements for caring for children. A Parenting Plan is not legally binding, and cannot be enforced.
Parenting Plans can be as simple or as detailed as needed. You can include the time children are to spend with relatives, such as grandparents, times and places for children to be delivered and collected by each party, where the child lives, and schooling arrangements.
Consent Orders are the formal arrangements for the care of children, and can be enforced. Consent Orders must be made with the consent of both parties.
Consent Orders commonly cover:
- Where the child should live
- who the child should spend time with, and how much time
- where the child should attend school
- who decides medical and lifestyle decisions.
If a person decides to permanently move away with a child, and they do it without the agreement of the other parent, then the parent can apply to the Court for a recovery order to have the child returned.
If a parent wishes to move away from the other parent, and take the child with them , and moving away would affect the amount of time that the child spends with the other parent, then the parent wishing to move can apply for a relocation order. If the other parent does not consent to the child moving, either parent can make an application made to the Family Court to decide whether to permit or refuse to allow the child to relocate.
Recovery and relocation orders are dealt with by the Family Court. These orders can be made on an interim (temporary) order, or by making a final (permanent) order. Mossensons can advise and prepare the application needed to make the relocation order.
To travel outside of Australia, a child needs a valid passport. To obtain a valid passport, both parents need to consent and sign the passport application.
If one party does not consent, and consent is unreasonably withheld, then the other parent can make an application in which they set out the grounds that they believe consent is being unreasonably withheld, and why the passport should be granted. Mossensons can assist you, in applying for a passport for a child, where the other parent unreasonably withholds consent, or in advising you if the other parent wishes to apply for a passport against your wishes.
Where a parent or guardian is concerned that another parent or guardian is going to remove a child permanently from Australia, without their knowledge or consent, the parent or guardian can apply to have a child placed on an airport Watch List, which alerts authorities if a person attempts to remove the child through a domestic airport
