Obligations and consequences of parenting orders
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Who has Parental
responsibility?
The Family
Law Act 1975 (the Act) sets out the rights, duties, powers and
liabilities of spouses and children, and provides for enforcement of those
rights and liabilities as well as the dissolution of marriage.
It
is an automatic presumption in the Family Law Act 1975 (Cth)
both parent have equal shared parental responsibility for each of their
child/ren until aged 18 years and this is not affected by changes in the
parents' relationship status.
Parental responsibility means all the duties, powers, responsibilities
and authority which, by law, parents have in relation their child/ren (see
sections 61B to 61DB of the Family Law Act for details).
Before you
apply to a court
Before you can apply to the
court for parenting orders, you will need to participate a Family Dispute
Resolution Conference. The Act requires
you to obtain a certificate from a registered family dispute resolution practitioner
before you file an application for a parenting orders.
What is the
difference between consent orders, parenting orders and parenting plans?
If you and the
other parent agree about parenting matters, you can make a parenting plan
rather than apply for consent orders. A parenting plan is a less formal way of
agreeing in writing about arrangements for your child/ren. If you and your
ex-partner do not agree about arrangements for your child/ren and you apply to
the court to decide, you are applying for a parenting order.
What are
parenting orders?
Parenting orders
are a set of orders made by a court about
parental responsibility and the living arrangements for a child. The
parties to a parenting order are legally bound to comply with it. You or
the other party may enter into a parenting plan or apply to court for consent
orders. Parents should understand thar the
best interests of the child is the paramount consideration for the family
court. The Family court will determine those interests based on the individual
circumstances of the particular family. Schools are not parties to parenting orders and they
are therefore not required to comply with, or enforce, them.
Structure of
parenting orders
A parenting order may deal
with one or more of the following:
- child/ren primary living arrangement
- how much time the child/ren will spend with each parent or with
other people
- how the child/ren will communicate with a parent they do not live
with, or other people, and
- any aspect of the care, welfare or development of the child/ren
e.g, medical, schooling, travelling, etc
Consequence of
breach of Court Orders
When
a parenting order is made, either by way of consent orders or after a
hearing by the court, every person affected by the order must comply with all
of the terms of the order. If there is a breach of orders you can apply
for a Contravention Application either the Federal Circuit
Court or the Family Court, depending on how complex the matter is. A
Contravention Application seeks an order from the court imposing a punishment
or consequence on a person who has breached the Court Orders.
If one parent
files an application alleging the other person did not comply with the parenting
order, the court may decide that the contravention was,
- established.
- established but there was a reasonable excuse
- less serious and there was no reasonable excuse, or
- a more serious contravention without reasonable excuse.
If a parent disobeys an order
multiple times or if a court finds that you have failed to comply with a
parenting order without reasonable excuse, it may impose a penalty. These
include:
- vary the primary parenting order
- order you to attend a post separation parenting program.
- paying for any expenses incurred because of the breach (such as
loss of airfares)
- paying some or all of the other person’s legal costs
- community service work
- entry into a bond for up to 2 years
- a fine
- a jail term
If you’re accused
of breaching a court order or you think someone else is breaching a court
order, you should contact us for legal advice.
Dangers of
sharing your Family Law proceedings on social media e.g. Facebook post, Instagram
post, twitter etc .
It is so common that most
people think that posting or venting on social media, or any media available
about their separation or family law proceeding to the public, is acceptable.
Section
121(1) of the Act imposed strict rules in place concerning the non-publication
of family law proceedings.The
punishment for breaching section 121 can be as severe as imprisonment of up to
1 year. In conclusion, You should be careful of
what you put on social media during family law proceedings to prevent such
information from being used against you.
The impact of
COVID-19 on parenting orders
We are all experiencing
uncertain and unprecedented times in the wake of the COVID-19 epidemic. Our recommendations is to communicate with each other about complying with current orders
and attempt to find a practical solution. If communication fails then
please contact can us and we can help you mediate an agreement and recommend
short-term alternate options where necessary and we will assist you with advice
on your obligations and consequences of non-compliance
Conclusion
The objects of
the Act is to ensure that a parent who is entitled to spend
time with their child ought to be able to do so. Every child has the right to a
meaningful relationship with both parents regardless of their marital status,
and parents should jointly share and fulfil their parental responsibilities in
relation to their children. Parenting orders can be made by consent
or as a result of a contested hearing before a Judge. The consequences for
breach of parenting orders can result in care for the child.
If you
or someone you know wants more information or needs help or advice, please
contact us on 1300 411 04 or email info@britluchotlawyers.com.au
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