Separated parents are often unsure or unable to communicate with the other parent in relation to an agreement on what time the children will spend with each parent. The first step for separated parents is to attend mediation through organisations such as Relationships Australia or a Family Relationship Centre.
Mediation allows the parents to negotiate arrangements for the children, including spending time with each parent and on special occasions such as Christmas, birthdays and school holidays.
In relation to the children spending equal time with each parent, the parents must consider;
How far apart they reside from each other so as to ensure any future arrangements made for the children will occur; if the parents are able to communicate and resolve issues between themselves and if the children would cope with this arrangement.
In the case of extenuating circumstances and it is not in the children’s best interest to spend week about time with each parent, then the children should live with one parent and spend substantial and significant time, which includes weekend and week time, such as shorter blocks of time during a fortnight with the other parent.
Further, the issue of equal shared parental responsibility or sole parental responsibility to determine the children’s health, schooling and any other long term decisions will need to be agreed upon by the parents. If an agreement is reached between the parents, then the mediator will draft a written parenting plan which both parents must sign.
A parenting plan is not binding and cannot be enforced by the Family Court or Federal Circuit Court of Australia if one parent does not comply with the parenting plan. If either parent decided to make an Application to the Family Court or Federal Circuit Court then the parenting plan would assist the Court to make a decision based on the previous intentions of the parents to spend time with the children.
A parenting plan can be converted to Consent Orders which is filed with the Family Court of Australia. Both parents must sign the Consent Orders and are not required to obtain independent legal advice. Neither parent is required to attend Court. Once the Orders have been approved by the Court, the Orders will be sealed and returned to the parents or their lawyer.
Alternatively, if parents have already reached an agreement for the children’s arrangements to spend time with each parent including special occasions then they can draft Consent Orders without attending mediation.
The parents must comply with the Consent Orders. If either parent does not comply with the Orders then a Contravention Application will need to be filed with the Court.
If mediation is unsuccessful or if one parent is unwilling to attend mediation, then the mediator will issue a Section 60I Certificate which allows either parent to file an Application to the Family Court or Federal Circuit Court. The Court does not accept Applications in relation to children’s matters without the Section 60I Certificate unless there is an exemption, such as child abuse, family violence or is an urgent matter, such as a recovery of a child from the other parent.
Nevett Ford have experience d Family Lawyers who can assist parents prior to attending mediation, drafting Consent Orders or filing an Application to the Court.