What to do if your Parenting Orders are no longer appropriate for your children
There are unfortunately quite a number of Gold Coast families who have had Parenting Orders in place, perhaps for a number of years, and for a variety of reasons those Orders are no longer in the best interests of the subject children. Whilst as the name would suggest, final orders are meant to be final, because they relate to children the Courts recognise that there must be some flexibility and fluidity. As such final Parenting Orders are capable of being changed, even when the other parent does not agree.
Steps to take if your Parenting Order is no longer appropriate
If you find yourself in this situation, you should consult with a specialist family lawyer and take advice specific to your situation. We are however able to set out below some general guidance:
- Talk with the other parent to see whether they are agreeable to a change in the arrangement;
- If direct discussions with the other parent does not prove to be fruitful, then engage in Mediation (also known as Family Dispute Resolution (FDR) Counselling);
- If agreement is reached through direct discussions or mediation, then you may file an Application for Consent Orders. This is a straight forward and relatively inexpensive process – including there being no requirement for the parties to attend Court;
- If there is no agreement and you are able to demonstrate a material change in circumstance pertaining to your children, then you may apply to the Court to vary the existing Parenting Order – you will have first needed to participate in FDR Counselling and obtained a Section 60I Certificate before making such an Application; or
- If there are circumstances of urgency and/or domestic violence, then prior discussion/mediation may not be practicable in which case:
a. You should take steps to ensure the immediate safety of your children – including an Application for Protection Order under the Domestic and Family Violence Protection Act 2012; and
b. You should file an Application under the Family Law Act 1975 seeking a change to the Parenting Orders (the requirement to attend FDR Counselling may be waived).
Complying with Parenting Orders
Quite often a parent who is concerned for the safety of their children whilst in the other parent’s care feel compelled to continue complying with the existing Parenting Orders. It is important to note that a parent can only be penalised for contravention of a Parenting Order if it is established that a party has breached the Order without reasonable excuse.
A Court, particularly during the interlocutory stages of the proceedings when they are unable to make determination of disputed facts, will look at the conduct of the party making the allegations. For example, if a parent alleges the other parent poses an unacceptable risk of harm to the children but then continues to send the children off to that parent, this would be inconsistent with the allegation. In that circumstance, the credibility of the parent making the allegations may be drawn into question.
Penalties for contravening a Parenting Order can be significant, including monetary fines and even a term of imprisonment. It is therefore crucial that if you have or intend to breach a Parenting Order, you act promptly and seek out specialist family law advice.