The legal system can be a daunting and traumatic, especially if you do not have the correct information or the right legal advice and guidance. There are various myths about parenting matters created through the media or by word of mouth which may cause you to falsely assume your case is bound to lose. However, every case is different and these myths are not necessarily how the Family Courts will determine parenting arrangements for your children.
The Mother Always Has More PowerIt is often misconstrued that the Court will always favour the mother over the father. There are no laws that state children should live primarily with the mother, rather than the father after separation. The Court will decide who the children should live with, not based on gender, but based on the best interests of the children.
Parenting Plans Are BindingParenting Plans are agreements signed by both parents, but which are not submitted to the Court and formalised into Consent Orders. Parenting Plans are not binding and cannot be enforced by the Court if they are breached. Parenting Orders, whether made by consent or decided by a Judge, are the only formal document that can be enforced by the Court. There are serious consequences and penalties if it is breached such as payment of fines, compensation or the other party’s legal costs, community service, or imprisonment.
For more information about changing a parenting plan, please refer to our blog post - I want to Change my Parenting Plan.
If We Don’t Agree, I Can Just Get a Court OrderMany parents believe that if they can’t agree then they can go straight to Court to have a Judge make an Order for them relatively quickly. This is not the case. Unless the matter is urgent, or there is a real risk of harm or abuse to the children, parents must attempt mediation and make a genuine effort to reach an agreement before court proceedings can be filed. There is a significant amount of time and work involved in preparing court documents and there are often delays for several months before your case may even be listed for hearing before a Judge.
I Don't Have to Consult With the Other Parent About Decisions Affecting the ChildrenEven if you don’t have Parenting Orders, the Court may consider that you should have consulted about major long-term decisions such as education, religion, medical appointments or relocating with the children.
For example, if you unilaterally change the children’s school or relocate with the children such that it impedes on their relationship with the other parent, the Court may make an order that the children be returned to their previous school. They could make also order that the children be returned to live within proximity to where they were living.
If you have Parenting Orders for joint parental responsibility for major long-term decisions, you are required to inform the other parent of any decision to be made, consult with the parent and make a genuine effort to reach a joint decision. You may also have orders that set out certain obligations for you to disclose information to the other parent such medical appointments, travel plans, school information etc. If you fail to comply with your Parenting Orders you could be in breach and the other parent may file a contravention application against - you which could have serious consequences and result in penalties being imposed by the Court, as mentioned above.
For more information on other mistakes parents make during custody matters, please see Top 10 Mistakes in Child Custody Matters.
Children Can Make Their Own Decisions About Where They LiveWhilst children’s wishes may be taken into account, there is no set age at which a child can decide by themselves where they want to live. When considering the children’s wishes, the Court will take into account their age, maturity, understanding of their decision and will consider various other factors when determining what is in the best interests of the children. The children’s wishes are just one factor amongst many that are considered by the Court in determining parenting arrangements. The Court will not base their decision solely on the wishes of the children without having an objective look at all the evidence and facts of the case.
Divorce Applications Deal with Parenting ArrangementsThis is incorrect. Whilst your divorce application requires you to include certain details regarding parenting arrangements, this is solely for the purposes of the Court being satisfied as to the children’s well-being. Your divorce application only deals with obtaining your divorce, so you are no longer legally married. The only way to formalise your parenting arrangements so that they are binding and enforceable by the Court is by a Parenting Order, either made by consent or determined by a Judge.
So now you know…
With these misconceptions in mind, you are armed with some critical information to safeguard you against ignorance.
Now that you know what’s fact and what’s false – it’s time to put the wheels into motion and plan for your children’s future.
Whether you are looking for a Parenting Plan to offer some guidance with communicating, or a Parenting order to structure your day to day lives, there’s no better time to get started.
If you’re still unsure - our experts would be happy to talk to you to help you figure out which one you need. Call our friendly and understanding team on: (07) 3172 3777