Parenting Arrangements Following Separation

The most important issues for families when a relationship breaks down concern the children – where will they live, how often will they see the other parent, who is responsible for the day-to-day decisions concerning their welfare and so on.

The best approach, and the one that is encouraged by the Courts, is for the parents to reach an agreement themselves regarding parenting arrangements. Even though the parents may be angry and emotional at the time of the break-up, they are the people who know the children best and should ensure their interests are taken into account.

Following a relationship breakdown, there are three options available to families who need to work out parenting arrangements:

1. An informal agreement

2. A Parenting Plan, or Consent Orders

3. Court Orders

Informal Agreements

An informal agreement regarding parenting is usually a verbal agreement between the parents regarding where the children live and any arrangements for them to spend time with the other parent. It may also cover things such as education and medical or healthcare arrangements for the children.

For some families, an informal agreement is all that is needed and it can work for many years. The arrangements are flexible and changes can be made as required, depending on the situation and circumstances of the parents. However, it is important to note that this sort of agreement requires good communication between the parents for it to work in the long term and if you and your former partner find communicating difficult, then it may not be the best option for you.

A Parenting Plan or Consent Orders

A Parenting Plan and Consent Orders made by the Court are also determined and agreed to by the parents. Having something written down and signed, like a Parenting Plan, or agreed to and then turned into Orders by the Court, can provide families with some more ‘certainty’ in their parenting arrangements.

A Parenting Plan might include an agreement on issues such as:

• Who the child/children will live with
• How much time they will spend with the other parent, or other carers such as grandparents
• Who will be responsible for the day-to-day welfare and decision making regarding the child
• School or education plans and responsibilities
• How future disagreements between parties regarding the Plan will be dealt with.

Whilst the parents remain in control of the details, and reach an agreement between themselves, arrangements like these can prevent ambiguity and give the parties something to refer to in the future. It also stops confusion and can help if one of the parents feels as though the other is not sticking to their side of the agreement or that they are not being treated fairly.

Parenting Plans and Consent Orders can be made at any stage following separation. Your lawyer can help you to negotiate a Parenting Plan and prepare the necessary documentation for both parties to sign.

If there is conflict between you and your former partner, and you are finding it difficult to resolve some issues, other professionals such as Family Dispute Resolution Practitioners or Mediators can help you to reach an agreement. Once the issues have been sorted out, a formal agreement is then prepared by a lawyer and either signed and exchanged, in the case of a Parenting Plan, or sent to the Court Registrar for Orders to be made. If Consent Orders are being made, the parties do not need to attend Court.

Court Orders

When a couple cannot reach an agreement about parenting arrangements, the last resort is to ask the Court to determine a solution and make Orders outlining what is to happen with the children.

The Family Law Act now states that couples are not allowed to ask the Court to make Orders concerning parenting arrangements unless they have attended Family Dispute Resolution (FDR) first and made an attempt to resolve their dispute themselves. A Certificate from a registered Family Dispute Resolution Practitioner must be submitted with any Court application, confirming that an effort had been made to resolve the dispute.

In some cases, such as when there are safety issues or the matter is urgent, the requirement to attend FDR will be dropped.

What happens if you don’t stick to the agreement?

A Parenting Plan, while signed by both parties, cannot be enforced by an application to the Court. It is not as legally binding as a Court Order and is only a record of an agreement reached by the parties. This is why many families opt for Consent Orders in which they reach an agreement themselves, and then ask the Court Registrar to convert the agreement into Orders.

Once Consent Orders are made, if one of the parties breaches the Orders the other person has the option to lodge a contravention application at the Court and have the Orders legally enforced. Once Orders are made by a Court any previous agreements or arrangements are no longer applicable.

Contravention proceedings are very serious and beaches of Court orders can involve sanctions such as bonds, fines and even imprisonment. If you have Court Orders in place and feel that you are likely to have difficulty following them, you should always seek legal advice and not simply refuse to follow the orders.

Your lawyer will be able to advise you on the most appropriate course of action in your situation and which form of parenting arrangement will work best for you.

For more information on Parenting Plans and Consent Orders, or to attend Family Dispute Resolution, contact the Lamrocks Family Law Team now.

Call 02 4731 5688 or email reception@lamrocks.com.au