Everyone wants what’s best for their children. In cases about children, the Family Courts
have the best interests of the children as the paramount consideration.
Although it may seem simple, often separated parents can have very different ideas about
what sort of arrangements are in their children’s best interests. These types of disputes
about the parenting of children, or ‘parenting disputes’, can be very difficult both for the
children and for the parents.
Often these disputes arise where parents realise after separating that their parenting styles
or priorities are quite different. Sometimes, one or both parents feel that the other parent
poses a danger to the children in some way.
For example, one parent might believe that the other parent doesn’t know how to administer
special medication to their child, or provide appropriate sleeping arrangements. This might
be resolved by both parents agreeing to go to a parenting course, to ensure that parenting is
consistent and up to scratch on both sides.
In another example, Dad might believe that following separation, the children should spend
one week with him, and the next week with Mum. Mum, having been the children’s primary
carer, might think that this is all coming too soon. This might be resolved by a slow step-up
of the children’s time with Dad, to ensure that both the children and Dad are coping with any
new arrangements.
Whatever the situation, the statistics say that most difficulties are able to be resolved without
going to Court. Court can be very expensive, and often the disagreements are simple to
resolve.
When parents come to an agreement, it’s important that the agreement is put down on paper
in a proper way, just like any other legal agreement. Usually, this will protect both sides (and
the children) from having to go through the whole process again.
Fortunately, the Family Law Act gives parents two different ways to do this – a Parenting
Plan and a Consent Order.
Parenting Plan
A parenting plan is a more informal document, which is signed and dated by both parents. A
parenting plan can include things like:
a) Who a child is to live with;
b) Who a child is to spend time with;
c) Who has parental responsibility for the child, meaning the responsibility to make
major long-term decisions for the child;
d) If two people are to share parental responsibility for the child, then how they should
consult with each other about the decisions to be made;
e) Who a child might communicate with;
f) Maintenance of a child, in a financial sense (but separate from child support, for
which you need a special Child Support Agreement);
g) How disputes about the parenting plan should be resolved;
h) The process for changing the plan if the circumstances or needs of the parents or
child change in the future; and
i) Any other aspect of the child’s care, welfare or development, or any other aspect of
parental responsibility.
Even though a parent can put together a parenting plan themselves, we recommend that a
parenting plan be prepared by a lawyer or at least reviewed by one. Some parts of the
parenting plan might have unintended consequences, loopholes, or not be specific enough.
If you’ve been asked to sign a parenting plan, you should see a lawyer before you do so.
Parenting plans don’t involve the Court, and are often cheaper and quicker. The downside of
a parenting plan is that if it’s breached, you don’t have the right to enforce it in Court – you
need to start the Court process from scratch.
If you do go to Court after entering into a parenting plan, a Judge has to look at what the
parenting plan says. For example, if one parent has breached the parenting plan, the Judge
might ask why. Or, if one parent is asking for Court Orders that are completely different to
the parenting plan they had agreed to, the Judge might also ask why.
Consent Orders
The other option for formalising parenting arrangements is entering into Consent Orders.
When you go to Court, what you are doing is asking a Judge to make certain Court Orders. If
both parents agree on the Orders which should be made, they can apply to the Court
together. The Court will usually make these Orders, as long as you have provided all the
necessary information, and what you are asking for is in the best interests of the children
and is fair and reasonable.
This requires preparing an Application for Consent Orders as well as the proposed Order
that you want the Court to make. Preparing a proposed Order can be technical, so we
recommend that you see a lawyer to assist you with doing so.
After the Order is made, parents will have a Court Order in the terms they have requested.
Court Orders can be inflexible, and for some parents, this can be a good thing.
Parents can, by agreement, change the arrangements set out in the Court Orders. However,
if they don’t agree, the Order stands. If you have a Consent Order, you can’t go back to
Court unless you can convince the Judge that there has been a significant change in your
circumstances or the child’s.
Further, if one parent breaches the Order, the consequences can be severe. The innocent
parent (the one who didn’t breach the Order) can make an Application to the Court saying
that the other parent has breached the Orders. Judges can make all sorts of Orders to set
things right, including fines, make-up arrangements, or changing the original Court Orders
altogether.
The downside to making an Application for Consent Order is the cost and time investment.
This official process is more complex and more expensive than a more informal parenting plan.
When you apply, you will also need to wait on the Court – it can take some time before
your case is considered. Further, the Court may not be willing to make the Order that you
want.
The best choice
Ultimately, every situation is different, and different circumstances call for different
approaches. Parenting plans can offer greater flexibility at lower cost, but don’t have the
ability to be enforced. Consent Orders are more expensive and complex, but for that you get
a greater level of enforceability.
Fortunately, we’re here to help. Give our family law team a call on 07 4638 1133 and we can
set up a no-obligation initial consultation to ensure your agreement is documented properly
and in a way that works for you.
Written by
JAMES HALLIDAY
Solicitor
