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25 February, 2016 | Smith and Partners
Below we outline your options for making your day to day care arrangements more legally binding.
If you believe there is a real risk of harm to your child(ren) whilst in the care of the other parent, then you could potentially urgently apply without notice for a Parenting Order. You would be required to file a without notice application to the Court. This means the other party would not be given notice of your application until the Court has considered it in the first instance. The Court can make an Interim Order if they believe you have grounds to make the application urgently. The other parent would then have the opportunity to respond to your application once they have been served with the requisite documents. The Interim Order would remain ‘Interim’ until the Court orders otherwise. The Court is then required to hear the matter and can make orders final. Please note that this is the only way to get into Court for parenting matters to be heard now, unless the parties have attended FDR (see below).
If the Court does not decide to make the Interim Order (as above), then arrangements stay the same until the other party has had a chance to respond (the Court will give them a period of time to file a defence in). This is called putting the application “on notice” (i.e. giving the other party notice of the application and providing them the opportunity to respond). The Court will then make their decision after both parties have been heard. In the meantime, your lawyer can assist your with negotiating informal interim care arrangements.
If there is no real risk of harm to your child(ren), you can initiate the Family Dispute Resolution (FDR) process. Lawyers are not involved in FDR, however your lawyer can assist you with preparing for the mediation.
FDR is where the parties meet with a mediator and try to come to agreement as to care arrangements for the child(ren). If agreement is reached, the mediated agreement can be turned into a Parenting Order (by way of consent) if you choose. If no agreement is reached, then at that point, either party can take the matter to Court.
If there is no real risk of harm to the children and you and your ex-partner can agree on the terms of the care arrangements (with legal assistance or without). A legally drafted document called a Parenting Agreement may be sufficient to create certainty. A Parenting Agreement outlines the agreed care arrangements for the children.
You may want to consider whether having agreed terms for care arrangements made into a Parenting Order, but by way of consent. This mean that you would have to apply for the Parenting Order (on notice) and file a consent memorandum outlining the agreed terms. Both parents would sign this. The Court is then likely to make the Order in accordance with what is agreed, although sometimes the Court likes to confer with parties prior to finalising the Order. An important factor to note about Parenting Orders by Consent is that parties face more serious consequences if they breach the Parenting Order; as opposed to breaches of a Parenting Agreement.
We will require a retainer to be paid prior to your first meeting, and we cannot assist with legal aid matters.
Please note that, in accordance with our obligations under the Lawyers and Conveyancers Act 2006, we cannot provide legal advice unless you have become a client of Smith and Partners and have received our Terms & Conditions of Engagement and Information for Clients.
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