Family Law

Parenting Disputes

The Court has developed a consistent approach to assessing how parenting issues are dealt with when making parenting Orders. Our Family Law team has the expertise to advise you on all parenting matters.

The presumption of equal shared parental responsibility

The starting point is that there is a statutory presumption of equal shared responsibility under s. 61DA of the Family Law Act 1975 (Cth) (‘FLA’) when making parenting Orders. It was held in Goode v Goode [2006] 36 FamLR 422; (2006) FLC93-286  that ‘unless the Court makes an Order changing the statutory conferral of joint parental responsibility, s. 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child …’

The best interests of the child

A Court must regard the best interests of the child as the paramount consideration when deciding whether to make a particular parenting Order in relation to a child.

How do I avoid Court and come to an agreement with the other parent?

We can help you formulate an agreement with the other parent of your child/ren and formalise this agreement either by way of a parenting plan or through Consent Orders.

Parenting Plan VS Consent Orders (Parenting)

What is a parenting plan?

A parenting plan can address a range of issues including who the child lives with, who the child spends time with, schooling, childcare, medical issues, educational choices, cultural and religious practices, arrangements for special days such as birthdays and holidays as well as procedures for making long-term decisions regarding the care, welfare and development of the child. It is also advisable to include procedures for varying the plan and resolving any disputes about the terms of the plan.

What are Consent Orders/Parenting Orders?

A parenting Order is an enforceable Court Order about parenting arrangements for your child/children. A Court can make a parenting Order based on an agreement between the parties (consent Orders) or after a Court hearing.

A parenting Order can only deal with one or more of the various matters outlined in s 64B (2) of the FLA  including the allocation of parental responsibility for a child etc. When a parenting Order is made, it is binding on each person affected by the Order. This means that if a parent was to breach the terms of the Orders, the other parent would be able to take legal actions to enforce the Orders.

Unless a Court orders otherwise, a parenting Order is also subject to change. It is worth noting that a parenting Order can be modified by a subsequent parenting plan. If this is done, parties may not be able to rely on the terms of the previous parenting Order that are inconsistent with the current parenting plan.

If you have reached an agreement with your former spouse/partner after a Family Dispute Resolution Conference with the other parent, an application for Consent Orders is the appropriate way to formalise a parenting agreement so that the parenting agreement becomes legally binding. If you wish to have your parenting agreement formalised and made into Consent Orders, the Family Law team at Genesis Edge Law Group can draft Consent Orders for you and submit your Applicant for Consent Orders to the Court. Once the proposed Orders are granted by the Court, they become legally binding.

Engaging in Family Dispute Resolution unless exceptions apply

In the first instance, we encourage you to try to resolve your parenting disputes between yourself and your spouse/partner. If that fails, our expert family lawyers will be able to help you in the process of negotiations through correspondence or attending Family Dispute Resolution with you if required.

Unless an exemption applies, the FLA and the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 require that you attempt to resolve your parenting issues via Family Dispute Resolution services prior to initiating a Court proceeding. However, section 60J of the FLA provides that families do not have to attend family dispute resolution services before applying to the Court if there has been and there is family violence or abuse; or there is a risk of family violence or abuse by one of the parties.

Parenting issues and Family Violence

It is recognised that family violence takes many forms. Family violence is defined in s. 4AB in the FLA to include the following:

  1. an assault; or
  2. a sexual assault or other sexually abusive behaviour; or
  3. stalking; or
  4. repeated derogatory taunts; or
  5. intentionally damaging or destroying property; or
  6. intentionally causing death or injury to an animal; or
  7. unreasonably denying the family member the financial autonomy that he or she would otherwise have had…

What the Court will do is to determine whether the evidence adduced in the case is such that there would be an unacceptable risk to the child. Our Family Law team can prepare a Notice of Child Abuse, Family Violence, or Risk of Family Violence and all necessary Court documents when applying for parenting Orders on your behalf.

Breach of Court Orders (Parenting)

In parenting matters, there are often issues of non-compliance and failure to attend; for example, arriving late or early for changeovers.  In these circumstances, the party alleging non-compliance can file an application for “contravention” of the Orders. It may be technically difficult to run legal arguments as to the other parent’s failure to comply.

Remember the onus is on you to demonstrate to the Court the circumstances of how the other party has allegedly failed to comply with the Orders; and what steps can be taken to assist in preventing further occurrences.

If you wish to bring a contravention application. You will need to file the following documents in Court:

  • An application for contravention of Court Orders;
  • An Affidavit in support;
  • A section 60I Certificate from a Family Dispute Resolution Practitioner, or an Affidavit for non-filing of a Family Dispute Resolution Certificate; and
  • A copy of the existing Orders.

Get Help now

Contact our highly qualified Sydney Family Lawyers for a private discussion about your concerns. We will carefully consider all the circumstances and can help you understand your legal position.  Call us now on 02 7233 0988 or our national legal hotline 1300 559 888 for an initial obligation-free discussion.

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