Parenting and court orders

When You Cannot Agree On Parenting

The steps. The options. The costs

If you are unable to agree to consent orders or a parenting plan, you have no option but to go to court.

We are experts at parenting matters and dispute resolution generally. This means that in a lot of cases even if you start a court application, you will have many opportunities to resolve the parenting dispute by consent or following a mediation. Sometimes it is necessary to take court action to get the other side to the table and to understand that the children’s best interests are paramount.

Guided self-help- 50% saving

There are a number of steps that we undertake below. We can also provide some guided self-help as an option to reduce your fees and costs by over 50%.

This is our contribution to resolving emotional parenting disputes for those who cannot afford for representation.

The courts now require you to have a 60I certificate and have attempted counselling or mediation prior to going to court. The court will usually then order another mediation to occur once the matter has started but you may be in a position to get some interim orders or protect the children whilst you sort out the final orders. The mediation stages lend themselves to guided self-help as well.

Letter of offer- Stage 1 from $1200 plus GST.

If you cannot agree, then our first step is usually a formal letter of offer to the other side’s solicitor.

These letters of offer are comprehensive and place the other side on notice that if we do not agree, we will be commencing court action. We are also required to do this so that we can show “genuine steps” have been undertaken to resolve the dispute before any court action. Where the children are in danger or the application is urgent and we can bypass the step.

Meet Our Family Law Senior Lawyers

Jaswinder (Jas) Sekhon

Jaswinder (Jas) Sekhon

Managing Director

Jaswinder strives to simplify and demystify complex legal
matters, to explain them logically and without “jargon”.
He resolves and commits to the best possible commercial
outcomes for his clients.

The Process for Contested Orders When Parent cannot Agree

Step one – wrote to the other side We wrote to the other side to invite them to resolve the dispute and we outline what our arguments are and what we are seeking.

Step two – attend dispute resolution We selected dispute resolution service and we attend that service – this will cost both parties legal fees and the fees for the dispute resolution service.

Step three – written notice of issues and future intentions If we reach agreement then we file for consent orders in the agreement is formalised. If dispute resolution is not attended or fails to reach a solution, and at this stage we write again of the notice of the intention to start a proceeding. We again list issues in dispute and the genuine offer to resolve this issue is and wait at least 14 days from the date of the letter.

Step four – reply to the notice of intention If you receive such a notice of intention then we must reply on your behalf within this time period

Step five – lodge an application in court Finally, after reasonable attempts to resolve the above by correspondence, we may file proceedings via an application in the Court.

Getting Help To Resolve Your Dispute?

Every situation is unique and different and we encourage you to call one of our senior lawyers for an obligation free discussion.

Whilst we agree generally with the statement below from the court, it is our experience that partners know how the other side is generally going to behave an unnecessary mediation may not progress the matter. It is our experience that a letter from a lawyer as a last resort is required. This will usually mean that the other side will need to get a lawyer. The other side’s lawyer will have the same issues to try and seek to resolve the matter.

“Court proceedings should be a last resort. The Court expects people to make genuine attempts to engage in dispute resolution, to avoid the time, cost and stress associated with litigation.”

The stated aim of the new system is that proceedings are dealt with within 12 months. In our experience you should allow 18 months depending on the attitude of the other side.

The Most Important Factor - What Is In A Child's Best Interests?

The Act sets out the primary, or most important, considerations, for the court when it is deciding what is in a child’s best interests. The Act also sets out some other considerations.
Some of these considerations are:

      • The benefit to the child of having a meaningful relationship with both of the child’s parents;
      • The need to protect the child from physical or psychological harm, and from being subjected to, or exposed to, abuse, neglect or family violence;
      • The need to protect the child from physical or psychological harm, including abuse, neglect or family violence, will outweigh other considerations;
      • Views expressed by the child, considering the child’s maturity and level of understanding;
      • The kind of relationship the child has with each parent and with other important people, for example grandparents or siblings;
      • How much each parent has participated in the child’s life, including how much they have spent time with and communicated with the child;
      • Whether each parent has met their obligation to maintain the child, for example paying child support;
      • The effect on the child of any change in arrangements, including whether siblings will be separated from one another;
      • The practical difficulty and expense of a child spending time with and communicating with a parent;
      • The maturity, sex, lifestyle and culture and traditions of the child and the child’s parents, including, for Aboriginal or Torres Strait Islander children, the right to enjoy their culture;
      • The capacity of each parent to provide for the needs of the child, including emotional and intellectual needs;
      • Any family violence involving the child or a member of the child’s family and, if a family violence order has been made, and what that order says; and
        The willingness and ability of each parent to encourage a close and continuing relationship with the other parent.

What Is 'Custody'?

The term ‘custody’ is considered outdated and replaced with the term ‘parental responsibility’, which refers to all powers in relation to making long-term decisions as to a child’s upbringing, religion and education; including making any decisions about major medical procedures and treatments and applying for a passport or visa for the children.

What Is Parental Responsibility?

Parental responsibility means the responsibility parents have for their children, and the important decisions parents make about their children. Each parent shares parental responsibility for a child unless the court makes an order saying otherwise.

When making parenting orders, the court will :

      • Presume that it is in a child’s best interests for the parents to have equal shared parental responsibility, unless a parent or someone who lives with the parent has engaged in child abuse or family violence; and
      • Look at other evidence and decide if equal shared parental responsibility is not in a child’s best interests.

What Is Equal Shared Parental Responsibility?

Equal shared parental responsibility means that both parents share the responsibility to make major decisions about their child. This means parents need to talk to each other about major long-term issues affecting their child, including the child’s education, religion, health, the child’s name and any changes to the child’s living arrangements that would make it much more difficult for the child to spend time with the other parent.

This doesn’t generally include day-to-day decisions about things like what the child wears or eats.

If the court makes an order for both parents to have equal shared parental responsibility, it must also consider whether it is practical and, in the child’s best interests for the child to spend equal time or substantial and significant time with each parent.

What Are 'Live With' And 'Spend Time With' Arrangements?

The parent with whom the child is living has the sole decision-making power for matters that are not about the children’s long-term welfare unless there is an agreement otherwise.

Equal shared parental responsibility does not mean that the child should live with both parents or spend time with both parents equally. The issues of where children live and who they spend time with are usually referred to as ‘live with’ or ‘spend time with’ arrangements.

There is no presumption that parents should have equal time with the children, however a court must consider whether equal time is appropriate if parenting orders are made for equal shared parental responsibility. If equal time is not appropriate, then a court must consider ‘substantial and significant time’ which is legislated to mean weekend time and week time.

A child has the right to have a meaningful relationship with both parents which includes a right to spend time with both parents when this is reasonably practicable in the circumstances.

It must be reasonably practicable and if one parent lives a significant distance away from the child’s school it would not be reasonable for the child to spend overnight time with that parent on school nights.

What Is Substantial And Significant Time?

Substantial and significant time includes children spending weekdays, weekends and holidays with each parent, and each parent having meaningful involvement in the child’s daily routine. It includes children spending significant events and special occasions with each parent.

In deciding whether it is reasonably practicable for a child to spend equal time or substantial and significant time with a parent, the court must consider:

      • How far apart the parents live;
      • Whether the parents can communicate and cooperate with each other and resolve difficulties, now and in the future; and
      • The effect on the child of any proposed arrangements.

Some of the above material above is “© State of New South Wales through Legal Aid NSW”

Applying To The Court - Mediation Certificate

Before applying to a Court for a judicial determination, parties must attend “Family Dispute Resolution” and obtain a certificate to show that they have done so unless there is a specific reason why dispute resolution is inappropriate in the circumstances.

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