Access to children and parenting agreements in Australia
Children who are supported and encouraged to maintain a relationship with parents, grandparents
and other relatives, can adapt to the changing situation with greater ease. Reaching
an amicable agreement for access to children is not always possible, and in some situations
a parent may need to apply to the Family Court or the Federal Circuit Court for Orders outlining
parental responsibility and visitations.
Parenting Plan verses Consent Order If the parents can agree on the care arrangements
and access to children after divorce or the breakdown of a de-facto relationship, then
a parenting plan should be made, or Consent Orders obtained. Parenting plans are written
agreements which are signed by both parents, and set out the agreed arrangements for access
to the children. This kind of agreement not only outlines each parent’s responsibility
and rights, but can also include details of child support payments. A parenting agreement
is not a legally enforceable agreement, and is not to be confused with a Parenting Order
made by the Court. The requirements of a parenting plan are outlined in Section 63C of the Family
Law Act 1975. A written agreement approved by the court is known as a Consent Order,
and covers parenting arrangements, child maintenance and financial arrangements, if required. This
is a legally enforceable agreement, and holds the same weight as a Parenting Order made
by the Court after a hearing. Parenting plans are often entered into and drafted during
a successful mediation; however, it is recommended that this agreement be transposed into a Consent
Order, and filed and approved by the Court.
Applying to the Court for Access If you cannot agree on parenting arrangements,
then you may need to apply to the Court to obtain a Parenting Order, outlining parental
responsibilities and access. Before doing so, you must have attempted mediation in the
hope of reaching an agreement. A copy of a certificate from an accredited family dispute
resolution centre must accompany the application. The requirements of a Parenting Order and
who may apply are outlined in Sections 64B of the Family Law Act 1975.
A Parenting Order can deal with many issues including:
who the child should live with; the time the child is to spend with the
other parent; the allocation of parental responsibilities;
how the child will communicate with the other parent;
the payment of child support; and any aspect of the care, welfare or development
of the child. An application for a Parenting Order can also
be made by Grandparents. If your matter is complex then the application should be filed
with the Family Court; however, all other applications should be filed with the Federal
Circuit Court.
Moving Away With Children If one parent is planning on moving away with
the children and this is going to limit the time the other parent can spend with them,
then a court may not give permission to do so. The parent who is moving should consider
applying to the Court, prior to the move, for a Relocation Order. The court will consider
what is in the best interests of the child before granting permission to move away from
the other parent. If the other parent wants to stop the move, then they can apply to the
courts to prevent the relocation. The costs involved in one parent needing to travel to
visit their child or children, or vice versa, can be taken into account when assessing child
support liabilities.
Travelling Overseas With Children If a parent is planning to take their children
overseas they need to get written permission from the other parent, even if the children
already hold a passport. If the child doesn’t hold a passport then both parents need to
sign the Passport Application providing consent for the child to obtain one. Providing consent
for a passport does not mean the parent consents to international travel, and on each occasion
permission needs to be obtained from the other parent. If one parent won’t sign the application,
then the other parent can write to the Department of Foreign Affairs and Trade, asking that
they consider issuing a passport due to “special circumstances”. If this fails, then an application
to the Federal Circuit Court will have to be made for an Order allowing the child to
travel internationally. If a parent is concerned that a child may be taken from Australia without
permission, an application can be made to the Court for one of the following Orders:
preventing a passport to be issued; requiring the passport to be delivered to the Court;
or placing the child’s name on the AFP Airport Watch List, which prevents them from leaving
the country. Recovery Order
If the child is not returned after a scheduled visit then an application can be made to the
Federal Circuit Court for a Recovery Order under Section 67Q of the Family Law
Act 1975. A Recovery Order can authorise a police officer to take appropriate action
to find, recover and deliver a child to the persons named on the Order.
What to do next If you or someone you know is dealing with
a family law concern it is important to obtain legal advice quickly.
Go To Court Lawyers operate a Legal Hotline on 1300 636 846 where you can talk direct
to a lawyer 7am – 9pm, 7 days/week. Your call will be treated with the strictest confidentiality
and without judgement.
The lawyer will assess your matter and recommend a course of action.
Should you need a Court lawyer, even if it is at very short notice, the Legal Hotline
staff will be able to arrange legal representation for you. You can also request a call back
via the website www.gotocourt.com.au and a lawyer will call you back to assess your matter.
