Children's Care Arrangements following Separation
Following a separation parents do not have to go to Court to negotiate or agree the care arrangements for their children. In our experience, a better outcome is achieved where parents are able to discuss the needs of their children and come to a sensible, practical and amicable arrangement. A care arrangement should always put the children’s health, safety and well-being first and be reasonably practical for both parties to carry out.
As a matter of principle, we strongly encourage our clients to attempt to negotiate care arrangements for their children and where possible, avoid the need to resort to the Family Law courts. A significant advantage of reaching an agreement is that it is much quicker and less expensive than litigation, which can be drawn out over a number of years and be a source of stress and conflict between the parties.
Where parents can reach an agreement, those care arrangements can be implemented immediately – thus minimising stress and disruption for both parties and their children in what is already a difficult time. That is not to say that a parent should reach agreement if they do not believe that the proposed arrangements are in the best interests of the children. Under the Family Law Act 1975 the best interests of the children are always considered paramount.
Parents who are able to reach an agreement regarding care arrangements for their children have two ways to formalise their agreement. The first option is a Parenting Plan. The second option is to obtain Consent Orders from the Family Court.
A Parenting Plan is a written agreement made between the parents of a child or children. A Parenting Plan sets out the care arrangements for each child including where and with whom the child is to live and for what periods of time; care arrangements for school holidays and special occasions. A Parenting Plan can also set out the principles by which the parties wish to conduct their co-parenting relationship i.e. to acknowledge that the child or children have the right to know, be cared for and be loved by each of their parents and extended family members or that each parent is committed to encouraging and facilitating a relationship between the child and the other parent.
The main disadvantage with Parenting Plans is that they are not legally enforceable It means that if one parent breaches the Parenting Plan, the other parent has no recourse other than to issue proceedings in the Family Court.
Therefore, Parenting Plans are generally only recommended for parents who already have a good co-parenting relationship and have no communication or trust issues between them.
The second option is to obtain 'Consent Orders' from the Court. The main difference between a Parenting Plan and Consent Orders is that Consent Orders are approved and sealed by the Court making them legally enforceable.
Consent Orders can comprehensively deal with a number of issues regarding care arrangements for a child or children, including:
• whether the parents are to have equal shared parental responsibilities or specify the division of parental responsibilities between them;
• with whom the child lives;
• whether the children will spend equal time with each parent or “substantial” and “significant” time with a parent, including specific details of how the child will spend time with each parent;
• the child spending ‘special days’ with each parent such as Christmas, Easter, birthdays, father’s and mother’s days as examples;
• the time a child will spend with a grandparent or other relative;
• the communication a child will have with another parent or person;
• if two or more persons share parental responsibilities, the form of consultation required between the persons;
• any aspect of the care, welfare and development of the child, including education (the school the child will attend), health, religion and cultural aspects, and travel arrangements.
As Consent Orders are legally enforceable, if a parent fails to comply with or breaches an Order, then (on application by the other parent) the Court can enforce compliance. The Court has a range of discretionary powers which allow it to vary the previous parenting orders; and if necessary, order the return or removal of a child from a parent and/or impose sanctions or penalties on the parent in breach of the Orders. Penalties for contravention of parenting orders can include anything from an order to attend at counselling, to community service orders and imprisonment.
It is generally recommend that parents seek formal Consent Orders from the Court as they provide better assurance that the agreed care arrangements will be carried out by both parties and if something does go wrong, the Orders are enforceable.
If you know someone who may need assistance, call us on 61 2 9212 1099 or email us email@example.com for more information.