Parenting Arrangements: How to document our agreement?
After separation, you and your children’s other parent will put in place parenting arrangements for where children live and spend time with each of you. You will put in place arrangements to ensure that your children are well cared for and their developmental, psychological, emotional and cultural needs are being met. Ensuring your arrangements meet your children’s “best interests” is your most important consideration and this is reflected in the Family Law Act 1975 at section 60CC.
There are several ways you can record the new parenting arrangements for your children which are:
- An informal agreement between you and your former partner;
- A Parenting Plan; or
- A Parenting Order, by way of:
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- Consent Orders; or
- A Court Order following contested Court proceedings.
The parenting arrangement that is right for you depends on your individual circumstances and whether you are able to reach an agreement with your ex-partner or spouse.
Informal Agreement
Informal agreements work well where there is a high degree of trust between you as well as good communication and both parties are willing to be flexible and accommodate each other. This is because an informal agreement is not enforceable by the Court. It is essentially a hand shake deal between you.
Parenting Plan
A parenting plan is a written agreement between you and your child’s other parent, signed and dated by each of you. It sets out when your child or children are to spend time or live with each parent during the school term, school holidays and on special occasions. It can cover issues such as how the parents are to communicate with each other and when one parent can contact the child when they are with the other parent.
The Court does not approve a parenting plan and the plan can be varied by agreement in writing between you. It is less formal than an Order of the Court and does not need to be written in legal terms.
Parenting plans are a great option for parents who are able to reach agreement with little difficulty and are relatively amicable and who do not foresee future changes, issues or disagreements arising, particularly where one party decides to depart from the agreement.
A benefit of documenting your agreement by way of a Parenting Plan is that it can be used to demonstrate to the Court the arrangements you and your former partner had previously entered into and implemented should there be a dispute later on. However, a Parenting Plan cannot be enforced by the Court if one party was to break the agreement. Therefore, if you feel you need more certainty or require enforceable parenting arrangements but have reached an agreement with your former partner, it may be best for you to consider entering into parenting orders.
Court Orders – By Agreement
A Parenting Order can be entered into by agreement between you and your child’s other parent at which point they are also called Consent Orders. This is a formal legal document signed by you and your former partner, and submitted to the Court for consideration and approval. Your consent orders are filed with the Court and usually do not require you or the other parent to attend Court.
Parenting Orders (by consent or made by the Court) are legally enforceable by the Court and are very difficult to change or vary once issued by the Court and it is important that you obtain legal advice on the impacts of your agreement.
Court Orders – Where There Is No Agreement
If you and your child’s other parent cannot reach agreement on parenting arrangements for your children you may need to commence proceedings in the Federal Circuit and Family Court of Australia asking that the Court makes parenting orders.
Prior to starting proceedings, you will need to comply with the pre-actions procedures.
The Court will then make a decision about what arrangements are in your children’s best interests based on evidence provided by you and your former partner. You may involve experts to assist the court to determine what arrangements are appropriate. Litigating parenting issues is only necessary in a small percentage of family breakdowns.
Breaching Parenting Orders Made By The Court
Once an order is made, either by consent or after the matter has been litigated, there are serious consequences for breaching the terms of your parenting order. If you believe your former partner has failed to comply with your parenting order, you can bring a contravention application to the Court. Contravention proceedings are treated similarly to criminal proceedings, and may attract severe penalties including a fine, bond, or imprisonment.
What If I Want To Change My Parenting Orders?
A parenting order may also be varied by a parenting plan and requires both parties to agree. This may mean that your parenting orders are no longer legally enforceable so you should consider this option very carefully and seek some legal advice.
Parenting orders are made on a final basis and can be difficult to change without the agreement of the other party. The Court must consider whether any of the following circumstances exist:
- There has been a significant change in circumstances; and
- The change in the existing parenting order is in the best interests of the child or children.
A “significant change of circumstances” has been accepted in cases where there has been:
- Family violence or a risk of abuse to the child;
- A change in the child’s needs, such as due to illness; or
- A parent seeking to relocate with the child.
Contact Us
We recommended that you seek legal advice to discuss these options and which one will best meet your individual circumstances. Our Family Law team are experts in helping you find the best option for your family. Contact us today and let us help you reach an agreement that works for you.
