Parenting and Paternity

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If parents reach an agreement in relation to parenting arrangements there are two ways the agreement can be formalised – by Court Orders made by consent or by entering into a Parenting Plan.

When separating and considering future arrangements for your children it is important to understand that there is no automatic right for parents to spend an equal amount of time with their children. In decisions about children the Court must have the children’s best interests as the most important consideration and will decide the allocation of parental responsibility, which parent the children should live with, and which parent the children should spend time with.

The Court must first determine parental responsibility which is the responsibility to make important, long term decisions about education, medical treatment, religion and where they live.

The Court will then decide who the children will live with and can order that they live with both parents (ie week and week about) or with one parent but spend substantial time with the other parent. On very rare occasions the Court will order that the children live with one parent and have no contact with the other parent.

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Frequently asked questions

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It is a written agreement about children that is signed and dared by the parents. It deals with who the child will live with, communicate or spend time with; the sharing of parental responsibility; maintenance of the child; the process to resolve any disputes or changes to the plan; any aspect of care of the child

They are not enforceable in Court if they are breached. The Court will take into account the contents of the plan if proceedings are commenced after it has been signed. Consent Orders are preferable as they can be enforced.

They suit situations where the parents are on amicable terms and are able to reach agreement about the children. They are useful where they children are very young and arrangements are likely to change over a short period of time. They are more flexible than Consent Orders and can be changed the little expense.

If they are breached there are not the same penalties as there are with a breach of Court Orders.

The Family Law Act states that the time the child spends with a parent includes days that fall on weekends and holidays; and days that do not fall on weekend or holidays; that the time the child spends with a parent allows the parent to be involved in the child’s daily routine and occasions and events that are of significance to the child and also to the parent.

Generally the paternity of a child is acknowledged by both parties. A man is assumed to be the father if he was married to an living with the child’s mother when the child was born; has signed a document acknowledging that he is the father; cohabited with the child’s mother in the ten months prior to the birth of he child; is on the child’s birth certificate as the father.

Disputes sometimes arise when there is a request for child support or contact. If paternity is at issue in a matter before the Family Court either parent may ask the court for a declaration of paternity. If satisfied that the relationship exists the court with make an order of paternity. A man wanting to deny a presumption of parentage must prove on the balance of probability that he is not the child’s biological father.

The court does not order DNA testing alone. This can only be done as an ancillary procedure to a parenting application. Orders for DNA testing cannot be made simply to satisfy the curiosity of a parent. They will only be ordered where they are needed to determine whether a parenting application is in the best interests of the child.

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