Following separation, the arrangements for your children’s care can become contentious. You and your former partner should preferably have discussions about those arrangements so that you can agree on issues such as, “How long will each parent spend with the children?”, and “Who decides where they go to school?”.
If you can agree on those arrangements, you do not need to go to Court. But you should consider formalising the agreement, by way of either:
A parenting plan is a written agreement that sets out parenting arrangements for the children. It can be an informal agreement, tailored to the needs of both parents and the children. But, it should be signed by both parents.
A parenting plan is not an order of the Court and therefore is not legally enforceable. But, if your relationship with your former partner is amicable and child-focussed, it may suit your purposes.
If you and your former partner already have an order from the Court that deals with the parenting arrangements, you and your former partner can enter into a parenting plan that effectively changes the parenting orders, to avoid going back to Court.
If you enter into a parenting plan and later find yourself in parenting proceedings in one of our family courts, the parenting plan can be considered by the Court when deciding what care arrangements best serve the interests of the children.
Consent parenting orders, unlike a parenting plan, are approved by a Court and are enforceable, provided that they are properly worded.
A Court, if asked to make parenting orders by agreement, must be satisfied that the orders are in the best interests of the children. However, once approved by the Court, consent parenting orders are enforceable, as if they had been made following a full-on hearing.
What happens if we can’t agree?
If you and your former partner are in dispute and cannot agree on the best arrangements for the children, unfortunately, you will need to file an Application with the Family Court or Federal Circuit Court, in which you will seek the orders that you believe are in the best interests of your children.
Before filing such an Application, you will generally have to try and resolve the dispute with the assistance of a registered Family Dispute Resolution Practitioner (“FDRP”). This could be a psychologist, counsellor or even another lawyer. If that fails, the FDRP will issue a certificate (under Section 60I Family Law Act 1975 –“the Act”) stating that you and your former partner have attempted to resolve the parenting issues out of court. That Certificate will then need to be filed, along with your Court Application.
Any person concerned with the care, welfare and development of a child can apply to a court for parenting orders. This can include the child’s grandparents or other relatives. When a court is asked to make a parenting order, the Act requires it to consider the best interests of the child as the “paramount” consideration.
If you are in dispute with your former partner in relation to parenting matters or wish to have a parenting plan or consent orders drawn up, Dimocks Family Lawyers will be able to assist you. Book an initial conference today to discuss your matter with one of our specialist lawyers.