Parenting arrangements can be dealt with informally, by parenting plan or by Court Order.
Parenting arrangements can deal with:-
- the way parents share parental responsibility, or sole parental responsibility
- where and with whom the children live
- who the children spend time and communicate with
- any other issues relevant to the children’s care such as schooling, travel, religion or medical treatment.
Family Dispute Resolution
The Family Law Act encourages parties to resolve matters without resort to litigation. A Court will not be able to hear an Application for a parenting Order unless the parties file a certificate from a registered Family Dispute Resolution Provider. A certificate is not required in certain circumstances, for example where:-
- There has been child abuse or there is a risk of child abuse by one of the parties;
- There has been family violence or there is a risk of family violence by one of the parties;
- The Application is made in circumstances of urgency;
- One or more of the parties is unable to participate effectively in Family Dispute Resolution (whether because of an incapacity, physical remoteness from dispute resolution services or for some other reason).
We can recommend Family Dispute Resolution Providers to you. Mediation is provided by numerous organisations including Relationships Australia and private Family Dispute Resolution Practitioners. A list of Family Dispute Resolution Practitioners is provided on the Family Relationships online website which is www.fdrrag.gov.au/Search.aspx or on the Family Relationships advice line 1800 050 321.
We recommend that you seek advice about the law as it applies to your circumstances and your obligations before you attend mediation.
If you reach agreement
Where you are able to resolve matters without going to Court there are options available to formalise the agreement reached in relation to parenting matters. You can enter into a Parenting Plan or a Consent Order to document the terms of your agreement.
A Parenting Plan is a voluntary agreement which sets out arrangements for the children. It must be in writing, dated and entered into free from any threat, duress or coercion. A Parenting Plan is not enforceable by a Court however, if any application is made to a Court for Parenting Orders, the Act requires that the Court have regard to the most recent Parenting Plan when making a Parenting Order.
A Consent Order is a voluntary agreement which sets out parenting arrangements for children. Consent Orders are filed in the Family Court, and if the Court is satisfied that the Orders are appropriate the Court will make the Orders sought. Consent Orders are legally enforceable and can only be changed by written agreement or by a Court Order. If you enter into a Parenting Plan after a Consent Order has been made then the Parenting Plan will take precedence over the earlier Consent Order but, as mentioned above, the parenting plan will not be legally enforceable.
We can assist you with the drafting of both Consent Orders or Parenting Plans or alternatively you can visit the Court website to obtain information on how to draft both at www.familycourt.gov.au.
We recommend that you seek advice about the law as it applies to your circumstances and your obligations prior to finalising a Parenting Plan or Consent Order.
Change of Name
A child’s surname is a matter of parental responsibility. If there is a dispute the Court can make an order regarding what name the child will be known by. The Court considers what is in the best interests of the child.
The child’s parents, or in certain circumstances one parent, can apply to change a child’s name in the Change of Name Register. If the child is over 12 years of age their consent is normally required. One parent may apply where they are the only parent shown on the birth certificate, the other parent is deceased or a Magistrates Court approves the change of name.
For more information follow the link to Births, Deaths and Marriages https://www.qld.gov.au/law/births-deaths-marriages-and-divorces/.
Once the Court makes an Order a breach is a contravention of the Order.
A person can be punished for contravening a Parenting Order, which has not been altered by a parenting plan, if he or she, without reasonable excuse:
- intentionally fails to comply with the order, or
- makes no reasonable attempt to comply with the order (for example, does not ensure that the child spends time with a parent pursuant to the Order), or
- intentionally prevents compliance with the order by a person who is bound by it, or
- aids or abets a contravention of the order by a person who is bound by it.
Penalties for failing to comply with a Parenting Order include varying the original Order, ordering attendance at post separation parenting programs, make up time, costs and compensation orders, community service, fine or imprisonment.
Can my partner get a passport for our child without my permission?
For Australian passports, both parents must sign an application for a passport.
If your child does not already have a passport and you are concerned that your partner may try to obtain a passport without your permission you should make a “Child Alert Request” to the Department of Foreign Affairs and Trade. A Child Alert Request is a warning to the Department of Foreign Affairs and Trade that you wish to be notified if any application for a passport is made in your child’s name. An Alert Request will remain valid for 12 months. The necessary forms can be completed online via www.passports.gov.au
If your child already has a passport and you are concerned that your partner will remove the child from Australia you need to make application to a Court to prevent their departure.
Location and Recovery
If you do not know your child’s whereabouts an application can be made for a location order. When deciding whether to make this order the Court considers the child’s best interests. The Court also has the power to make a recovery order which requires the return of the child.
If a parent wishes to relocate with a child and this will affect the time the child spends with the other parent an application can be made to prevent the other parent relocating with the child.
Grandparents and Grandchildren
The Family Law Act 1975 recognises that children have the right to spend time with and communicate with people who are significant to their care, welfare and development which includes grandparents and other relatives. ‘Spending time with’ and ‘communicating with’ includes face to face contact, telephone contact and correspondence such as letters and emails.