Sadly this situation happens more often than it should. When a relationship breaks down, communication between the parents becomes difficult and the children can be used as tools to manipulate the other party. There are different options are available to you depending on your situation.
If you have Court Orders in place – you can try and attend a dispute resolution centre to have a mediator try and resolve the problem. If this doesn’t work, you will need to get a certificate from the mediator saying that you made a genuine attempt to resolve the matter but no solution could be made.
You then need to file the certificate with a Contravention Application stating that the other parent has breached the original Court Orders. The court will then look at the breach and could potentially enforce the Orders and punish the other parent for breaking them.
If you have a parenting plan – you may have a parenting plan that outlines each parents commitment to the children. If this is breached, unfortunately there is no real remedy that you have. As it is not a court order, you cannot enforce it with the other party. You should consider starting an Initiating Application in the Federal Circuit Court, see more about going to court here.
We recommend that upon separation you immediately come to an agreement as to how the children will be spending their time with each parent. There are two ways that you can document your agreement, one is through a Parenting Plan, the second is through Consent Orders.
The worst thing you can do is to not write down your agreement – this will definitely lead to arguments and problems as there will be confusion and miscommunication.
Parenting Plan – Is an informal document that outlines the time each child will be spending with each parent. For example, a parenting plan may state that: “The child is to spend every alternate weekend with the father. The father is pick up the child from school at 3 pm on Friday afternoon and will return the child to school at 9 am on the following Monday.” Parenting Plans are not enforceable by law.
Consent Orders – This is a formalised version of the parenting plan. It basically makes the same arrangements, however, it gets sealed by the Family Court meaning that they are enforceable under the law and there will be consequences if they ar breached.
We always recommend our clients to document their parenting agreements in Consent Orders.
Once you have separated with your partner, you may think that you have a grip on the situation and that you don’t need to write up a parenting plan.
However, the situation can change very quickly. Your ex may remarry or find a new partner. They may hear from other separated couples that they are entitled to more time with their child or that you are a bad influence on the child. A parent may even decide to relocate with the child.
Any of these things can happen, leaving you in a situation where you would like to refer to a legally enforceable document that clearly identifies what to do in any given situation.
You should always try and get a parenting agreement finalised when you are on amicable terms with your ex, not once there are problems and both parties start resenting one another.
If you reach an agreement but want to keep things informal without Consent Orders, you are taking a huge risk that may costs you thousands of dollars down the line.
A lot of fathers come to us asking this question and believe that the Australian legal system is automatically against their chances of receiving primary custody.
The best you can do to heighten your chances of winning primary custody is to stay with the kids upon separation.
There has always been a preconception that the courts will always award mum primary custody and dad gets the kid on weekends.
This is simply not true.
Each case is unique and requires careful consideration, nonetheless, if it can be argued that it is in the best interests of the child to stay with dad and not mum, then the court may make a decision in your favour.