Gillard Family Lawyers’ Accredited Family Law Specialists have compiled a list of the most frequently asked questions relating to Family Law.
What is Family Law?
Family law is a term used to describe legal disputes or issues which arise out of family relationships and breakdowns. Family law largely focuses on divorce, separation of married or de facto couples and disputes involving parenting arrangements, property settlement or other financial issues that arise from relationship breakdown. The purpose of family law is to assist individuals who cannot agree on matters post separation and to protect the welfare of children who are affected by family breakdowns. Although outcomes or court decisions will vary according to each set of circumstances, all family law disputes are governed by the Family Law Act 1975.
What does Family Law cover?
Family law covers all matters relating to children, property and finances following a divorce or breakdown of a relationship. It covers issues such as parentage disputes, including paternity, artificial conception procedure, the rights of grandparents or step-parents to seek orders, relocation and family violence. It also covers prenuptial agreements and how they are enforced or interpreted, as well as any other dispute arising from a separation.
What is the Family Law Act 1975?
The Family Law Act 1975 (“the Act”) is the written legislation that applies Australia-wide and which covers separation, divorce, property settlement, parenting arrangements and all issues arising out of family law matters. The Act came into effect on 1 January, 1976, replacing the Matrimonial Causes Act 1959. The Act has been amended regularly since it came into effect, to improve its workability and to ensure that it stays relevant to how our society has developed and changed.
Some examples of significant amendments to the Act are:-
- In 2006 there were amendments to strengthen the requirement for mediation before the commencement of proceedings for parenting orders.
- In 2009 the Act was amended to ensure that de facto couples had the same rights as married couples in relation to property settlement.
A copy of the Family Law Act 1975 can be found at https://www.legislation.gov.au/Details/C2019C00182
How much does a family lawyer charge?
Family lawyers’ fees are usually billed in accordance with the time spent on a matter and the overall work completed. A lawyer’s hourly rate is usually dependent on their experience, expertise in a certain legal field or the location in which they practice. Most lawyers charge between $300 and $650 per hour. A family lawyer’s hourly rates and fees are set out in a costs agreement made with the client prior to work commencing on their matter. Gillard Family Lawyers offer an initial consultation for a fixed fee of $220.
What is an Accredited Specialist in Family Law
An Accredited Specialist in Family Law is a lawyer who has engaged in family law practice for a minimum of five years full time and who has also passed a rigorous set of exams and assessments. The tests assess the lawyer’s competence and skills in the area of family law and if passed, they are formally accredited to practice family law as a qualified specialist. Only 6% of solicitors in New South Wales have specialist accreditation. There are only 13 Accredited Specialists in Family Law in Newcastle and Gillard Family Lawyers is proud to have two of them working in our team, Michelle Gillard and Luke Shearston.
Is Family Law free?
To receive the services of a family lawyer, you will need to pay in accordance with the costs agreement entered into with that lawyer. If you cannot afford this, you may be eligible for a grant of legal aid. If you apply for legal aid, Legal Aid NSW will assess your income and expenses, your assets and the merit of the dispute. If you are granted legal aid, your lawyer’s fees will be paid by Legal Aid NSW, although you may be assessed to make a small contribution. There are also community legal centres that may be able to assist you if you do not qualify for legal aid.
What is Family Law mediation?
Family law mediation is a form of alternative dispute resolution which allows parties to a relationship breakdown an opportunity to discuss issues in dispute to attempt to reach agreement rather than have a court decide. Family law mediation is available for those wishing to finalise parenting arrangements, property settlement or other family law issues.
Mediation is now a compulsory pre-filing obligation in relation to parenting issues. Any party wishing to file an application for parenting orders must attempt mediation and be issued with a Section 60I Certificate. This certificate must be lodged when filing the application to demonstrate that this obligation has been complied with. If one party proposes mediation and the other party refuses to participate, then the requesting party will receive a Section 60I Certificate, allowing them to then commence proceedings.
While a Section 60I Certificate only applies to parenting proceedings, mediation is strongly encouraged before commencing property settlement or other financial proceedings. Parties filing an application for property or other financial orders must also file a Genuine Steps Certificate, stating that they have given full financial disclosure and made genuine attempts to settle their dispute, for example by undertaking mediation. Michelle Gillard is an accredited mediator for parenting arrangements, property settlement or other financial issues.
What is a Section 60I Certificate?
A Section 60I Certificate will be issued by an accredited Family Dispute Resolution Practitioner, either when the parties to a parenting dispute have participated in mediation with that practitioner or when a party has been invited to participate in mediation and declined. As set out above, generally a Section 60I Certificate must be filed at the same time as filing an initiating application commencing proceedings for parenting orders.
What does Family Law mediation cost?
A family law mediator will charge, on average, $1,500-$5,000. The fee will vary depending on the complexity of the issues in dispute, how long the mediation lasts and the mediator’s experience. Most mediations can be completed in one day and the parties generally share the mediator’s fees equally.
If you cannot afford a private mediator and you satisfy the means test for legal aid, you may be able to receive a grant from Legal Aid NSW to participate in a Family Dispute Resolution Conference.
How many Family Law cases go to trial?
Not all family law cases that are commenced go to trial. Parties can reach agreement prior to commencing proceedings or at any stage prior to final hearing. If an agreement is reached, your lawyer can draft orders formally setting out the agreement reached and once those orders have been signed, they can be filed with the court and made by consent. Most family law matters that are commenced are settled at some point prior to final hearing, with only a small percentage requiring an actual decision by the court.
Can Family Law decisions be appealed?
The decision of a judge made following a final hearing can be appealed if there are grounds to do so. Generally, there are only grounds for appeal if the trial judge has made an error of law, or an important error of fact. Appeals have very strict procedural requirements, including a time limit of 28 days from the trial judge’s decision within which an appeal can be filed. If you are considering an appeal from a decision that has been made, we suggest that you promptly seek the advice of one of our family lawyers.
The decision of a Senior Judicial Registrar made following an interim hearing can be reviewed, but generally the review application must be filed within 7 days of the interim orders. If filed within the time limit, the review application is heard by a judge as a fresh re-hearing of the issues that were before the Senior Judicial Registrar.
If the interim hearing was before a judge and it relates to parenting orders, then an appeal can be filed within 28 days. If the decision is in relation to other issues, it is generally necessary to seek leave to appeal – in order to be granted leave to appeal it is generally necessary to show that the appellant will suffer substantial injustice if the leave is not granted.
Can Family Law decisions be stayed?
To stay an order means to suspend its operation. If an appeal has been filed, the person can then apply to the judge who made the order appealed from to stay that order. In order to obtain a stay it is generally necessary to demonstrate that the “fruits of the appeal” may be lost if the stay is not granted – for example if the order being appealed from requires a property to be sold and the party seeking the stay is wanting the opportunity to retain that property.
Are Family Law decisions be made public?
All family law cases that proceed to hearing are reported and form part of the public record. However, in order to protect their confidentiality, the parties’ names are anonymized before the report is published. Family law judgments are accessible through online legal resources and important parts of legally significant decisions are published in textbooks and other written materials.
How do the courts deal with divorce?
Divorce is an aspect of family law and describes the formal process of dissolving a marriage.
Australia has a no-fault divorce system – divorce can be granted whenever it is shown that the marriage has irretrievably broken down and there is no prospect of reconciliation. The fundamental fact that must be proved is that you have been separated for 12 months before the divorce application was filed. You can still be divorced even if you have lived for the whole or part of the 12 month period under the same roof as the other party, but you will need to file an affidavit by yourself, together with a third party, stating that you were living separate lives even though under the one roof.
Once a divorce application is filed, it will be heard in a brief court hearing. You will only need to attend that hearing if the divorce application shows that there is a child of the marriage under the age of 18. A divorce order will issue one month and one day after the hearing.
Although it is common for couples to divorce after separation, there is no obligation to do so. Parenting or property settlement proceedings can be commenced even though the parties are still legally married. Once a divorce is ordered, property settlement proceedings must be commenced within 12 months.
What is family violence?
Family violence is defined as violent, threatening or coercive behaviour that presents itself through physical, emotional, financial or sexual abuse. Family violence can have a significant impact on the wellbeing of a child and the court takes any allegations of family violence into account when it is asked to make parenting orders. If there are state family violence orders in place, the court will do its best to ensure that parenting orders do not pose a risk to the safety of any party or the children the subject of the family law proceedings.
Family Law and child custody
“Child custody” is no longer an expression used in the Australian family law system. Instead, the care and legal responsibility a parent has in relation to a child is referred to as “parental responsibility”. Both parents have parental responsibility for their child or children following separation until a court makes an order otherwise.
If court proceedings are commenced, the court will make an order for either “equal shared parental responsibility” or “sole parental responsibility”. If the court makes an order for equal shared parental responsibility, then all major long-term decision for the child or children will need to be made jointly. If there is an order for one parent to have sole parental responsibility, then they are not required to consult with the other parent before making major long-term decisions.
An example of when a sole parental responsibility order might be made is if there is a high level of conflict between the parents and they lack the ability to effectively communicate about parenting issues.
In addition to orders about parental responsibility, the most common parenting orders that are sought are in relation to “spending time”.
Usually, one of the parents is the primary residence parent for the child or children, and there is an issue about how much time the child or children spend with the non-residence parent.
If there is evidence of family violence or high conflict, the court is unlikely to make an order for equal time. The court may order substantial and significant time, or limited time, or may even order that there be no time between the child or children and the non-resident parent.
The court is sometimes asked to make an order for supervised time, meaning that the time that the children spend with the non-residence parent is supervised by another trusted adult or a supervision professional. Supervision orders are very rarely made as final orders, so that the parent that has the issues raising the need for supervision will need to address those issues prior to the final hearing or face the risk of the court ordering that there be no time.
What is spending time?
When a court makes orders about who the children live with, generally it will also make orders about how they “spend time” with the other parent. The amount of time that the children spend with the non-resident parent will depend on a range of factors including the ages of the children, the role that the non-resident parent played in their care prior to separation, the work commitments of the parties and as children get older, the wishes or views of the children.
Can I get equal time?
Parents can agree to an equal time arrangement for their children. This is where the children typically spend one week with one parent and the following week with the other parent. Where court proceedings have been commenced over parenting arrangements, an equal time arrangement is a less common outcome. This is because, in an equal time arrangement, the parents will need to be able to communicate with each other regularly in relation to issues such as after school activities, appointments, excursions and other school-related activities and this is much more difficult in cases of high conflict.
Equal time orders can be very difficult to obtain through the courts and it is recommended that you get legal advice from a specialist family lawyer before filing an application for equal time or continuing to run your case as an equal time case. Significant care needs to be taken in the drafting of your affidavit. For example, if you file an affidavit that contains nothing more than evidence about how “bad” the other parent is and how poor communication is, you may find that you end up with limited time instead of the equal time you were seeking.
What is parental responsibility?
Parental Responsibility is the term used to describe the legal responsibility that a parent has for a child. If you have a child, you currently have parental responsibility for them without the court making any order. However, once court proceedings are commenced, the court will make an order for either equal shared parental responsibility or for one of the parents to have sole parental responsibility.
What is equal shared parental responsibility?
There is no longer a presumption under the Family Law Act that it is in the best interest of the children for the court to order that the parents have Equal Shared Parental Responsibility. However, the Act still contains provisions that encourage the parents to agree on long term issues regarding the children such as their surname, where they go to school, religious or cultural upbringing and major medical treatment. A court can still be asked to make an order for joint decision making on major long-term issues but will not do so when the court finds that there has been abuse or family violence or that it is not in the best interests of the children for the parents to share parental responsibility.
What is child support?
The child support scheme is designed to ensure that the financial needs of the children are met following the breakdown of a relationship. Child support is generally payable to the primary carer of the child (who the child lives with) by the parent who does not live with the child. Child support payments can be self-managed or collected and paid by the Child Support Agency. To determine how much child support is payable or owing, you can use the child support estimator at Child Support Estimator (csa.gov.au). The estimator assesses the paying parent’s income and expenses, to determine how much is payable to the other parent. The estimator is just a guide and does not replace a formal assessment by the Child Support Agency.
If the other parent refuses to pay child support or they are not paying the necessary amount, you can seek advice from one of our family lawyers to discuss your options.
What is a property settlement?
A property settlement is the process in which you and your former spouse or partner divide property following separation.
The Act and the Family Law Rules set out a positive obligation on both parties to a property settlement to make full disclosure of their assets and financial circumstances.
When determining the division of the asset pool, consideration is given to the financial contributions at the start of a relationship, financial and non-financial contributions during the relationship and contributions as homemaker and carer for any children. The future needs of both parties are also considered, such as any health needs, continuing care of children and any need arising from income earning disparity.
There is no law that stipulates that assets are to be divided 50/50. With the large range of factors to be considered, each case is different. Your circumstances are unique and it is strongly recommended that you seek legal advice before finalising your property settlement.
A property settlement can be formalized by way of Consent Orders or a Binding Financial Agreement. At Gillard Family Lawyers we always encourage clients to document their settlement by way of Consent Orders.
Can I document my settlement using a Binding Financial Agreement?
The Act provides that you can document your property settlement using a Binding Financial Agreement. You must be aware that by doing so you are opting out of the Court’s jurisdiction. This can have implications for enforcing your agreement. You can also enter into a Binding Financial Agreement either prior to (often referred to as a Prenuptial Agreement) or during a relationship.
There are strict requirements for the Financial Agreement to be binding and such an agreement must be carefully drafted to reduce the risk of it being set aside at a later date. Binding Financial Agreements are only enforceable if the agreement has been signed by all the parties and prior to signing each party was provided with independent legal advice about the effect of the agreement and the rights of the party.
Many specialist family lawyers will advise you against signing a Binding Financial Agreement (BFA) because it can easily be set aside through no fault of either you or your solicitor. A BFA provides you with little security and many provide for arrangements that are not just and equitable. A BFA can be set aside purely as a result of the conduct of the other party or their solicitor. For example, if the other party’s solicitor did not give them the required advice as set out in the Act. A BFA can also be set aside if there is a change in circumstance after it is made, such as the birth of children to the relationship.
Family Law and Superannuation
The superannuation interests of each party to the relationship are considered as assets of the relationship.
Superannuation interests including defined benefit pension schemes can be split when finalizing a property settlement.
Can I move with my child or children?
If you wish to relocate with your child or children, you will need to discuss this with the other parent to see if you can come to an agreement. If you are unable to agree, you will need to commence court proceedings to seek an order that the child be permitted to relocate. The primary consideration in these cases, as in all parenting proceedings, is the best interests of the child.
Consideration will also be given to your ability to foster an ongoing relationship between the child and the other parent. The court will also have regard to the ages of the children and the capacity of the other parent to relocate to or travel to the area you wish to move to.
How long will my Family Law matter take?
There is no fixed time-frame in which family law matters are finalized. How long your matter is going to take depends on the issues in dispute, whether any expert reports or other third party documents are required and how both parties co-operate with the process. Some matters can be completed within a few months, but more complex, highly contested proceedings can take several years.
An experienced family law solicitor who regularly has matters before the court will often be able to give you a good indication of the current time-frame for your matter to move through the court system.
If you are attempting to negotiate a property settlement out of court, the most common delays are over non-disclosure issues and valuations. Once these issues are addressed or resolved, parties can begin making offers or attend mediation.
Is domestic violence relevant in Family Law?
Domestic violence, referred to in the Act as “family violence”, is relevant in parenting and property matters.
In parenting proceedings, if allegations of family violence are proven, the court will make orders that ensure that the children are protected from an unacceptable risk of harm.
In property settlement proceedings, family violence is considered if it affected one party’s earning capacity or made their contributions significantly more difficult.
What is a Pre-Action Letter and why am I being served with one?
The Act and the Family Law Rules set out the procedure to be taken before filing an application with the court. The procedure is designed to ensure that only those cases which need the court’s intervention are filed with the court. A pre-action letter sets out how the party serving it proposes that the dispute, whether it be about parenting and/or property issues, should be resolved and gives notice that the party serving the letter intends to file an initiating application to commence proceedings if there is no agreement.
What is an Initiating Application?
An initiating application is the document filed in the court to commence court proceedings. The application contains the relevant details of the parties and sets out the final orders and the interim orders that the party filing the application is asking the court to make.
What is a Response?
A response is the document filed in court by the other party to the court proceedings who has been served with an initiating application. The response sets out which of the orders sought in the initiating application are agreed, together with the alternate orders sought by the party filing the response.
What is an Affidavit?
Most evidence in family law proceedings is given by affidavit. An affidavit is a document, that is either sworn or affirmed to be true, that sets out what the person making the affidavit asserts to be the facts relevant to the proceedings. Affidavits are made by the parties to the proceedings. Affidavits can also be made by other witnesses, giving their evidence in relation to specific issues. At the final hearing, the parties and their witnesses are cross-examined on the evidence in their affidavits.
What is a Notice of Risk?
A notice of risk must be filed at the same time as filing an initiating application or response that seeks parenting orders. The notice sets out details of risk to the children alleged by the party filing it, including risk of physical harm and/or emotional harm, and gives detail of the behaviour which it is asserted gives rise to the risk.
What is the Central Practice Direction?
The Central Practice Direction (CPD) is a comprehensive practice direction drawn up by the Chief Justice of the Federal Circuit and Family Court of Australia, pursuant to the court’s rules, which sets out the procedure that is generally applicable to all matters filed in the court. The CPD can be found on the court’s website and covers issues such as pre-action requirements, procedure at various court events, circuit sittings and the like.
Can I transfer my proceedings from Sydney to Newcastle?
Sometimes following a relationship breakdown, where both parties reside in the Newcastle area, one of them will instruct a solicitor in Sydney. Sometimes, when that party is the one to commence proceedings, the initiating application is filed in Sydney as that is more convenient to the solicitor filing the application. If you are served with an application that has been filed in that way, you are able to apply to the Sydney registry of the court to transfer the proceedings to Newcastle. A judge in the Sydney registry will then deal with the transfer application and will take into account the convenience to the parties, the location of likely witnesses, the comparative delays and will then decide whether to transfer the proceedings.
What is the difference between Interim and Final Orders?
There is often a lengthy delay between the time that proceedings are commenced and the final hearing. The court may need to make interim orders which set out arrangements that will be in place until the final hearing. For example, it may be necessary to make interim parenting orders that include the interim spending time arrangements, or in property settlement proceedings it may be necessary to make orders that restrain a party from selling certain assets.
What are Consent Orders?
Consent Orders are legally enforceable orders that can be entered into before or during court proceedings. They can be used to finalise the whole or part of a dispute. Consent Orders are filed with the court with the agreement of both parties.
Can a grandparent seek Parenting Orders?
A grandparent, or any person concerned with the welfare of a child, such as a step-parent, is able to commence proceedings in the court seeking parenting orders in relation to the relevant child or children.
What do I have to disclose in a property settlement?
It is important for each party to give “full and frank” disclosure in any property settlement negotiations or proceedings. Full and frank disclosure refers to the disclosure of all assets and liabilities, income and expenses for each party. Examples of documents to be disclosed include payslips, home loan statements, bank account statements and superannuation benefit records. It is important that the rules for disclosure are complied with, as a failure to do so may constitute grounds to set aside consent orders or a Binding Financial Agreement.
Do I have any rights if we were not married?
Yes. Amendments to the Act in 2006 provided for de facto couples to have the same legal rights that married couples have.
What if I don’t want to sell the house?
It is important to establish the asset pool of the relationship to answer these questions. Once the asset pool is known, you can work out what payment you would need to make to the other party to keep the home and refinance it into your name. You should make enquiries with a bank or mortgage broker about your borrowing capacity, because it will assist your lawyer in negotiation. It may be that there are other assets that can be offered to the other party and there is no need for a cash payment.
I stayed home and cared for the children – am I still entitled to a property settlement?
Yes. Contributions as homemaker and parent are given the same weight as contributions as the breadwinner.
What is an Independent Children’s Lawyer?
An Independent Children’s Lawyer (ICL) is appointed to represent the children in complex parenting matters. An ICL is an experienced family lawyer who has completed further training and study which qualifies them to act as an impartial representative of the child’s best interests in parenting disputes. Michelle Gillard and Luke Shearston have both been appointed to the NSW Legal Aid panel of Independent Children’s Lawyers and regularly represent children in difficult or complex parenting matters.
Can I talk to people about my Family Law matter?
Going through a family law matter can be stressful and it is important that you have a support network during these times. You should be mindful, however, that you are not allowed to publish or share the contents of court documents and/or court material with anyone else. Doing so could cause you to be convicted of an offence, which is punishable by imprisonment of up to one year.
Do I have to be divorced to start Family Law proceedings?
You do not need to be divorced to start family law proceedings in relation to children or property. In fact, there are many couples who may go through a lengthy court process to resolve parenting or property settlement yet never formally get a divorce.
Are there time limits for filing Family Law documents?
You can commence proceedings for parenting orders or property settlement at any stage following separation, provided you have undertaken the necessary pre-action procedures.
For married couples, once a divorce order has been made, proceedings for property settlement must be commenced within 12 months of the date of the order. For parties to a de facto relationship, proceedings for property settlement must be commenced within 2 years of the date of separation.
Can my ex-partner make a claim on assets in my name only?
All assets and liabilities, irrespective of whose name they are in, will be taken into account when calculating the division of property. They will either form part of the net asset pool or be considered a future financial resource. The court will consider the contributions made by each party to each asset. It is possible for a party to make non-financial contributions to assets, such as homemaking contributions like cleaning a property, or work done on it to maintain it.
Can my ex-partner and I go to the same lawyer if we are amicable?
No, it is not possible. Even if you and your former partner are on good terms, there is a conflict of interest for the one solicitor to represent both of you.
If you formalize your property settlement or parenting arrangements by way of consent orders, it is recommended for both parties to have a solicitor, but it is not necessary.
If you document your property settlement by way of a Binding Financial Agreement, both parties must be legally represented.
What is a court child expert?
A court child expert is either an employee of the court or a private practitioner who has relevant experience and qualifications in either social work, psychology or psychiatry. The court child expert will be asked to prepare either a Child Impact Report or a Family Report.
What is a chapter 15 expert?
A chapter 15 expert is a single expert, being an appropriately qualified person in private practice, instructed jointly by both parties to prepare a report in an area of expertise, such as valuation of property or parenting arrangements. The chapter 15 expert provides a report to the parties jointly and the costs are generally shared equally. In parenting proceedings, the expert report can be utilized as a privately funded family report. In many cases the parties can obtain a report from a chapter 15 expert much more quickly than a court appointed family report.
What is a family report?
A family report is prepared by a court child expert employed by the court or chapter 15 expert for use in parenting proceedings. It is a comprehensive report detailing the parenting issues in dispute, observations and recommendations. It is prepared following interviews with each of the parties and the children individually and observation of interactions between each of the parties and the children. The Family Report is used by the court to assist in making final parenting orders. It is one piece of evidence and if a report is for or against your case, it is important to have a good lawyer representing you to ensure that the report writer is properly cross-examined.
It is possible to obtain a second, or shadow, expert report on certain conditions. Such reports are generally paid for by only one of the parties. This can be a costly exercise, but it is worth considering if the joint report is not favourable to that party’s case.
What is a Child Impact Report?
A Child Impact Report (CIR) is a short form of report written by either a court-based or private child expert, usually early in parenting proceedings. The court child expert meets with the parties and the children separately and the report details the issues in dispute, observations of the parties and the children and makes some preliminary recommendations. The CIR assists the court to make interim parenting orders pending a final hearing.
What happens at a directions hearing?
A directions hearing is a procedural appearance before the court. You will likely have a few during your proceedings. The directions hearing is an opportunity to assess where the matter is at and what needs to be done to progress the matter forward towards a final hearing. Examples of orders that are made at a directions hearing for parenting matters include orders for drug testing, preparation of a family report, or for the parties to participate in mediation. Orders that might be made in a property settlement matter include orders for the parties to exchange financial disclosure or to obtain a valuation report.
What happens at an interim hearing?
An interim hearing is a short hearing before a Judge or Senior Judicial Registrar – the rules provide that the hearing should be limited to 2 hours. The parties are generally restricted to the evidence contained in their Affidavit, the material produced under subpoena and submissions made to the court by their lawyer.
When listing a matter for interim hearing, the court will order the parties to file a Case Outline document, which will set out the documents being relied on together with a summary of the arguments that the lawyer will make during the interim hearing.
As there is usually no cross-examination at the interim hearing, there is a limitation on the findings of fact that the court can make when the evidence is in dispute.
After conducting the interim hearing, the judge or senior judicial registrar will make interim orders.
What is the difference between a parenting plan and consent orders?
Both documents formalize an agreement made regarding parenting arrangements, but they are very different.
A parenting plan is a form of agreement drawn up between the parties setting out the arrangements for who a child is to live with, the time the child is to spend with the other parent, the allocation of parental responsibility for the child and other parenting issues. A parenting plan can be registered with the court if it satisfies the formal requirements for registration, but the court does not check the terms of the plan in those circumstances. A court can set aside a parenting plan if it finds that it is in the child’s best interests to do so.
Consent orders are made by the court, but you will not need to attend court in order for them to be made. Consent orders are binding on the parties until the child is 18. If you want to change the orders it will need to be by consent, or you will need to show that there has been a significant change of circumstances since the orders were made. If a party breaches an order, then the other party may file a contravention application.
I have just been served with an Apprehended Violence Order for the protection of my ex-partner – what does this mean for my parenting orders?
Orders dealing with parenting arrangements are made by a Federal Court, whereas an Apprehended Violence Order (AVO) is generally made by a State court. The family law orders will therefore take precedence over the AVO, but only where there is an inconsistency. For example, if the AVO has a condition that you must not contact the other parent, but your orders provide for you to call the other person’s phone to have telephone contact with the child at 2pm on Saturday, you may only phone the other parent’s number at 2pm on Saturday. If you attempt to ring the other party’s number at any other time that would be a breach of the AVO conditions.
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