Following separation, some parents are able to maintain good communication with each other and actively encourage the relationship between their child/children and the other parent. In these circumstances an informal unwritten agreement regarding the care of the child/children may be appropriate. In all other circumstances, you may need assistance in reaching an agreement with the other parent. If you and your former partner have reached an agreement regarding the care of your child/children, you can either make a Parenting Plan or, if you would like to make your agreement legally binding, you can apply to the Court for Parenting Orders. In circumstances where parents are unable to agree, Parenting Orders can be made by the Court following a court hearing or trial.
A Parenting Plan is a written, signed and dated agreement between separated parents that sets out parenting arrangements for children. It is a good option for separated parents who communicate well and trust each other. It sets out the care arrangements for children, including with whom they live, and the time they spend with the other parent. It may cover such aspects as:
- communication between the child/children and another person;
- the way in which the child/children may be disciplined;
- changeover locations;
- notification of the other parent when a child is unwell or in circumstances where there is an emergency; and
- many other areas regarding the care and welfare of children.
While Parenting Plans have the advantage of being flexible, they are not legally enforceable agreements. The Court is not involved in either making or changing a Parenting Plan. If there is a signed and dated Parenting Plan in place and an application for Parenting Orders is subsequently filed in the Court, the Court is required to have regard to the terms of the Parenting Plan if it is also in the best interests of the child/children to do so. It is important to remember that a Parenting Plan may be used to influence a Court decision if your parenting matter were to proceed to trial.
Parenting Orders are legally enforceable Family Law Orders that detail the parenting arrangements for the care, welfare or development of, or parental responsibility for, children. If you breach a Parenting Order, you may be penalised by the Court.
Final Parenting Orders remain in force until a child turns 18 years of age. Final Orders can be made after a court hearing or trial, or by consent if all parties are in agreement (Consent Orders).
Even when you and your former partner apply for Consent Orders, the Court will not approve the Orders unless the Court considers the Orders are in the best interests of the children. Under the Family law Act 1975 (Cth), the Court begins with the presumption that it is in the best interests of the child/children for both parents to have equal shared responsibility for the child/children (except in cases where there is family violence or abuse). Equal shared responsibility covers major decisions regarding children such as where they attend school, their religion, and decisions regarding their health. Orders will also address how much time children spend with and how they communicate with each parent. Whether the time with each parent is equal, or substantial and significant, depends on the best interests of the child/children, and the workability of the Order.
The Court is reluctant to expose children to ongoing litigation so Final Parenting Orders can be only be varied by the Court in certain circumstances. Any proposed change must also be considered to be in the best interests of the child/children. The Court must first be satisfied that there is evidence of a significant change in circumstances since the making of the Final Orders. An example of a significant change in circumstances is where one party is seeking to relocate with the child/children.
If you and your former partner agree, Final Parenting Orders can be changed by a subsequent Parenting Plan. The terms of the parenting Plan will override the earlier Parenting Orders to the extent that the terms are inconsistent unless it can be shown that a parent signed the Parenting Plan under duress, coercion or threat.
If you are considering either making a Parenting Plan or applying for Parenting Orders, it is important to first obtain independent family law advice.
If you would like further information and advice regarding this article or family law matter, please contact Kennedy Guy on (03) 9311 8511 to arrange an appointment with one of our family lawyers.