If an aggrieved and a respondent to an application for a domestic violence order have children, it may be worth considering putting formal parenting arrangements in place.
Parenting arrangements can cover things like where the children live, who they spend time with and communicate with, childcare and schooling, financial support and how those with parental responsibilities communicate with each other.
There are three different types of written parenting arrangements:
This is a written agreement setting out the care arrangements for children. It is signed and dated by the children’s parents and is an informal way of agreeing on how the children will be cared for. A parenting plan is not required to be in any specific form or witnessed and can be changed at any time in writing, with the consent of both parties.
These kinds of plans are not legally enforceable. If there are already consent orders or parenting orders in place any parenting plan made after the order will make the terms of the original order (if varied), legally unenforceable. Unless, the original order includes a term that says that the order can’t be changed in this particular way.
If you apply for formal orders before a Court after making a parenting plan, the Court is not required to follow the terms of the parenting plan, but it is taken into consideration.
You can make an agreement or parenting plan legally binding by applying to the Court for consent orders. The Court will still consider the orders and will only make them if they are considered to be in the “best interest” of the child/children.
Consent orders can only be varied by a further consent order, parenting plan or parenting order.
If you are unable to come to an agreement regarding your children, you can apply to the court for a parenting order. In order to make such an application, you must first attend mediation to try to reach an agreement. A certificate from a family dispute resolution practitioner must be included with your application to confirm that you have been to, or attempted to go through the mediation process. You are exempt from attending such a mediation if there is a domestic violence order in place.
The overall consideration that a Court has when deciding what orders should be imposed is what is in the “best interests” of the child. Primary considerations in making this determination are the benefit of children having a meaningful relationship with both parents along with the need to protect children from physical and psychological harm, including witnessing family violence. Other considerations include the views of the children, relationships with other family members, how much each parent has participated in the children’s lives, changes to the children’s current living arrangements, how much each parent can provide for the children’s physical, emotional and intellectual needs, any family violence, behaviour of each parent to date (including any criminal history), practical difficulties and expense of the children seeing each parent and each parent’s attitude towards the responsibilities of being a parent.
A starting point for such orders is the presumption that it is in the children’s best interests for the parents to have equal shared parental responsibility, until other evidence is produced to convince the Court otherwise.
Please be aware that it is a requirement to advise the Court if any domestic violence orders are in place between the parents.
If you need advice on how a domestic violence order may affect your parental rights call Aitken Whyte Lawyers Brisbane on 07 3229 4459 to discuss your situation with an experienced solicitor, or follow the links below for more information on Domestic Violence.