Parenting Plans

It is often a priority for separating parents to resolve the future care arrangements of their children. Parenting plans are documents that record the care arrangements of children, which parents will often sign and date. They are useful documents, and for many are enough to allow them to move forward with their lives.

What most people do not realise however is that parenting plans are not legally binding documents.

So what does this mean?

The reality is parties of parenting plans are not bound by law to follow them in the same way that they are obligated to comply with Court Orders.

If a party contravenes a parenting plan, you cannot enforce it in the same way that you could if you had a legally binding arrangement. This is also true for seeking sanctions against the party who breached the parenting plan. Fortunately, you can formalise a parenting plan as a Consent Order.

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Thorne & Kennedy [2017] HCA 49 is a decision of the High Court of Australia whereby a Binding Financial Agreement, or ‘pre-nup’, was set aside.

So what good are pre-nups if they can be set aside?

To answer this question, it is important to understand the background to Thorne & Kennedy.

In this case, the parties met on the internet in 2006. Ms Thorne was 36 years old, with no substantial assets, at the time lived in the Middle East. By contrast, Mr Kennedy was 67 years old and held assets with a value of approximately $18 million.

In February 2007 Ms Thorne moved to Australia, and on 30 September 2007 the parties were married.

On 19 September 2007, Mr Kennedy informed his fiancé that they were going to see a lawyer to sign an agreement.  Mr Kennedy informed his fiancé that if she did not sign the agreement, the wedding would not go ahead.              Against independent legal advice, Ms Thorne signed the ‘pre-nuptial’ agreement pursuant to section 90B of the Family Law Act 1975 on 26 September; some four days prior to the wedding.

Shortly after the marriage the parties entered into a ‘post-nuptial’ agreement pursuant to section 90C of the Family Law Act. Ms Thorne again signed against independent legal advice.

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Want to travel with the children overseas?  If you have or are seeking parenting orders however, you might want to double-check a few things before making any plans, otherwise you could find yourself potentially facing a criminal charge. Section 65Y of the Family Law Act 1975 makes it an offence to take or send a child from Australia if that child is subject to a parenting order dealing with:

• where a child lives;
• when a child spends time with a person;
• when a child communicates with a person; or
• when a person has parental responsibility for a child.

Similarly, section 65Z of the Act makes it an offence to take or send a child from Australia if there are proceedings before the Court for the making of a parenting order of the sort referred to above.

There are exceptions however, as the Act allows a child to be taken from Australia overseas in the circumstances outlined above, so long as it is done with:

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We sit upon the precipice of a new age whereby we are developing technology that can teach a computer to ace Super Mario World (fun) or to command an autonomous army (scary).  An Australian venture is attempting to do something even scarier still,  to apply data and technology to predict likely outcomes in Family Law cases. Family Law : An App.

Is this a good idea or a bad idea?

The concept appears to be that the App will analyse both hard data and matters specific to a case, and predict likely outcome based on patterns and trends or legal precedents together with what the founder of the App describes as ‘gut feelings’, or statistical unknowns. (more…)

Blog post by Mary Basta and Sarah Nicholls

The 60 Minutes crew recently hit the news headlines after being accused of involvement in an operation to recover children from a street in Beirut in an attempt to have them reunited with their mother.  It was a widely publicised debacle. Generally, the longer a child remains with the other party, the more difficult it is to successfully obtain a recovery order.

If you are faced with a situation where your child has been wrongfully taken, it is essential that you take appropriate action immediately and seek urgent legal advice.

What is a recovery order?

A recovery order is an order made by a court requiring the return of a child to a:

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

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Blog post by Sam Lehman

Is Your Family Law Case Urgent because in news this past week, Family Court Chief Justice Diana Bryant made a call for increased funding to assist appropriate risk assessment or ‘triaging’ of matters at early stages in the Family Court and Federal Circuit Court, both of which hear matters concerning family violence and child abuse.

The Australian reports that Chief Justice Bryant has urged the government to consider a further cash injection of ‘an extra $20 million over the forward estimates’ to support the appointment of family consultants and registrars to

assist judges in the management of cases. This will reportedly allow serious allegations of family violence to be dealt with swiftly to ensure the safety of children.

Chief Justice Bryant recognises this issue:

“You don’t want to make a mistake ­either way. You don’t want to make orders that will provide for ongoing contact and put children at risk; on the other hand … you want to try and protect the relationship between a parent and child, especially if it’s going to take two years for a matter to be heard.”

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