Description

This page contains information about the following areas of family law we practice in:

1. Courts we appear in
2. Court Appearances
3. Steps involved in Court Proceedings
4. Children
4.1 Parenting Orders Parenting Orders, Obligations and Who can Help.pdf
4.2 Parenting Plans
4.3 Consent Orders
4.4 Child Recovery & Location Orders
4.5 Contravention Hearings
5. Child Support
6. Compulsory Dispute Resolution Conference Compulsory Dispute Resolution.pdf
7. AVOs & Family Violence
8. Allegations of Child Abuse and Neglect
9. Children's Contact Centres Childrens Contact Centres.pdf
10. Family Law Property Settlements

1. Courts we Appear in

We appear at the Local, Family Law, Federal Circuit & Children's Courts in Sydney CBD and Parramatta as well as the NSW Supreme Court at Sydney

2. Court Appearances
Interim Hearings
Urgent Child Recovery Orders
Urgent Applications in a Case
Final Hearings
Conciliation Conferences
Directions Hearings
Mentions
Contravention Applications
3. Steps involved in court proceedings
Pre-action procedures Duty of Disclosure.pdf
Court application filed
First court appointment or hearing
Child dispute (see ?Family Consultant? below)
Court based dispute resolution (financial)
Preparation for final trial or hearing*
Final trial or hearing
4. Parenting

Children and separation
If you agree on parenting arrangements
If you can't agree on parenting arrangements
Independent Children's Lawyer
Complying with orders about children
Applying to change an existing order
Relocation and travel
Recovery orders
Grandparents - Frequently Asked Questions
Grandparents - Links
Grandparents and other family members

4.1 Parenting Orders

What is a parenting order?
A parenting order is a set of orders made by a court about parenting arrangements for a child. A court can make a parenting order based on an agreement between the parties (consent orders) or after a court hearing or trial. When a parenting order is made, each person affected by the order must follow it. A parenting order may deal with one or more of the following:

■ who the child will live with
■ how much time the child will spend with each parent and with other people, such as grandparents
■ the allocation of parental responsibility
■ how the child will communicate with a parent they do not live with, or other people
■ any other aspect of the care, welfare or development of the child.

A parenting order can require the parties to follow certain steps before applying to a court to change an order. It can also state the process for resolving disputes that arise from the order. If the parenting order provides that two or more people have equal shared parental responsibility, any decision about a major long-term issue in relation to a child must be made jointly. This requires each person to consult with the other person and make a genuine effort to reach a joint decision.

Your legal obligations

■ You must do everything a parenting order says. In doing so, you cannot be merely passive but must take positive action and this positive obligation includes taking all reasonable steps to ensure that the order is put into effect. You must also positively encourage your children to comply with the orders. For example where the order states your children are to spend time with another party, you must not only ensure that the children are available but must also positively encourage them to go and do so. There are agencies in the community that can help you and your family adjust to and comply with the order.
■ The order remains in force until a new parenting order or parenting plan changes it in some way.
■ Even if the needs or circumstances of you, the child or the other party change, the court order applies until it is formally changed by a court or, in some situations, you enter into a parenting plan with the other party.
■ Sometimes people talk to each other about changing arrangements set out in a parenting order. These talks do not change the order.

If you want to change a parenting order and the other party does not agree, family dispute resolution can help you and the other party work through your disagreement. Resolving issues this way is less formal than going to court and should cost less in money, time and emotion. If an agreement cannot be reached, you may consider applying to a court for orders.

4.2 Parenting Plans
A parenting plan is a written agreement that sets out parenting arrangements for children.

Because it is worked out and agreed jointly, you and your former partner do not need to go to court. Unless the Court orders otherwise, you and your former partner can agree to change a parenting order (made on or after1 July 2006) by entering into a parenting plan. A parenting plan is not legally enforceable. It is different from a parenting order, which is made by the Court.

4.3 Consent orders
A consent order is a written agreement that is approved by the Court. A consent order can cover parenting arrangements for children as well as financial arrangements such as property and spouse or de facto maintenance. Consent orders have the same legal force as if they had been made by a judicial officer after a court hearing.

4.4 Child Urgent Recovery & Location Orders
A recovery order is defined in section 67Q of the Family Law Act 1975. It is an order of the Court that can require a child be returned to a:

■ parent of the child
■ person who has a parenting order that states the child lives with, spends time with or communicates with that person, or
■ person who has parental responsibility for the child.

A recovery order can authorise or direct a person or persons, such as police officers, to take appropriate action to find, recover and deliver a child to one of the people listed above. As well, a recovery order can provide directions about the day-to-day care of a child until the child is returned or delivered.

A recovery order can also prohibit the person from again removing or taking possession of the child. In these cases, a recovery order can authorise the arrest (without warrant) of the person who again removes or takes possession of the child.

Who can apply?
You can apply for a recovery order if you are a:

■ person who the child lives with, spends time with or communicates with as stated in a parenting order
■ person who has parental responsibility for the child in a parenting order
■ grandparent of the child, or
■ person concerned with the care, welfare and development of the child. For example, you may be the person who the child lives or spends time with but there is no parenting order that states this.

How do I apply?
An application for a recovery order should be filed in the Federal Circuit Court. If you have a current parenting case in the Family Court, the application should be filed in that court. If you do not have a current parenting order, you should apply for one at the same time as applying for a recovery order.

On the application form, you must say what orders you are asking the Court to make. For example:

The Marshal of the Court, all officers of the Australian Federal Police and all state and territory police officers are requested to find and recover [child/ren & date of birth] and deliver the [child/ren] to the [father/mother/other] and for that purpose to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is at any time reasonable cause to believe that the [child/ren] may be found.

You must also file an affidavit to support your application. You should include details of the following points, if applicable:

■ A brief history of the relationship between you and the person the child is presumed to be wit
■ A list of previous court hearings and family law orders
■ Details about the child and where he/she usually lives
■ How and when the child was taken from you or not delivered to you
■ Where the child might be and the basis for that belief
■ Steps (if any) that have been taken to find the child
■ Why it is in the child?s best interests to be returned to you
■ The likely impact on the child if a recovery order is not made
■ Any other factors relevant to the case.

Please note, this is not a complete list and may vary depending on the circumstances of each case. It is essential that all relevant facts are disclosed, particularly evidence relating to any complaint that the person with the child might have about you.

Your chances of recovering the child will improve if you have information about where the child is likely to be. You should collect as much information as possible to help authorities find and return the child.

What happens at court?

In deciding whether to make a recovery order, the Court must regard the best interests of the child as the paramount consideration. The Court may make an order which allows or requires a person to return the child to you at a designated time and place. In some cases, the Court may make a recovery order which authorises or directs a person or persons, such as police officers, to take appropriate action to find, recover and deliver the child to you.

Note - The Court is not a child recovery agency. If the Court makes an order authorising or directing another person or persons to find, recover and deliver the child, you must give a copy of the order to that person or persons. In most instances, this will be the Australian Federal Police (AFP).

TheAFPwill not generally recover a child, except in exceptional circumstances, until you are able to receive the child and are close by. This means you may need to travel to collect the child when he or she is recovered.

The AFPhas offices in each capital city and some regional locations. Go to or look in the White Pages for contact details.

When the child is returned to you, you must notify registry staff at the Court as soon as practicable.

Can I stop the child being taken overseas?
You can take steps to prevent a child being taken overseas. For more information, see the fact sheet ?Children and international travel after separation?.

What if the child still isn't found?

In some situations, you may ask the Court to issue other orders to help locate the child; for example:

■ A Location order requires a person to give the Court information about the child?s location
■ A Commonwealth Information order requires a Commonwealth Government Department, such as Centrelink, to give the Court information about the child?s location that is contained in or comes into the records of the Department
■ A Publication order allows the media to publish details and photographs of the missing child and the person they are believed to be with. However, each case is different and the terms of the publication order can vary. This is usually a last resort and you should seek legal advice first.

What if the child has been taken from ?
If a child has been taken fromAustraliawithout your consent, or has not been returned toAustralia, you should contact the Commonwealth Attorney-General?s Department for assistance.
Australiahas an agreement with some countries to return abducted children to their country of usual residence. The agreement is called the Convention on the Civil Aspects of International Child Abduction (the Hague Convention). For a list of countries party to the convention, go to (look under the international child abduction link) or call the Department on 1800 100 480.

Press this link to NSW Legal Aid brochure providing detailed information in relation to Urgent Child Recovery Orders Urgent Child Recovery Orders.pdf

4.5 Contravention of Parenting Orders
A court can only penalise someone for failing to comply with a parenting order, which has not been altered by a parenting plan, if another person files an application alleging the person did not comply with the order. After considering all the facts of the case and applying the law, a court may decide that:

1. the alleged contravention was not established
2. the contravention was established but there was a reasonable excuse
3. there was a less serious contravention without reasonable excuse, or
4. there was a more serious contravention without reasonable excuse.

If a court finds that you have failed to comply with a parenting order without reasonable excuse, it may impose a penalty. Depending on the situation and the type and seriousness of the contravention, a court may:

■ vary the primary order
■ order you to attend a post separation parenting program
■ compensate for time lost with a child as a result of the contravention
■ require you to enter into a bond
■ order you to pay all or some of the legal costs of the other party or parties
■ order you to pay compensation for reasonable expenses lost as a result of the contravention
■ require you to participate in community service
■ order you to pay a fine
■ order you to a sentence of imprisonment.