Following the breakdown of a relationship where there are children, the parties have to make a decision as to the care arrangements of the children. It is always preferable that the parties come to an agreement about the care arrangements so that not only is the involvement of contested Family Court proceedings avoided, but the parties are then able to focus on providing the children with the necessary tools in dealing with the separation of their parents.
Where the parties are able to come to an agreement about the care arrangements for the children, they then have two options in recording and formalising their agreement, namely entering into a parenting plan or obtaining formal orders from the Family Court by consent.
A parenting plan is a written agreement made between the parties and outlines the agreed care arrangements for the children. A parenting plan can also deal with financial support of the children if the parties can agree on the same.
Each party needs to sign and date the agreement with the intention of informally finalising the children’s matters between them. It is important to note that a parenting plan is just an informal agreement and is not legally binding or enforceable. Due to the unenforceable nature of parenting plans, they are recommended in situations where there is no animosity between the parties and each party trusts the other to comply with the provisions of the parenting plan, and where there may be a need for some flexibility.
If there is any form of animosity between the parties, or there is a chance that one party may not comply with the parenting plan it is recommended that the parties formalise their agreement by filing an application for consent orders with the Family Court.
Consent Orders made by the Family Court
Upon coming to an agreement as to the future care arrangements for the children, the parties are able to file an application for consent orders with the Family Court seeking that the Court make formal orders in accordance with their agreement.
Filing an application for consent orders is the preferred method of recording and formalising the agreed care arrangements for the children due to the certainty it provides to both the parties and their children. Once the Court approves the contents of the agreement, formal orders are made. The orders are made on a final basis and provide each party with a safeguard.
If one party does not comply with the orders, the other party then has the ability to seek recourse against the non-complying party from the Court without any delay.
A further advantage of having formal orders in place in respect to children’s matters is that they minimise the potential for dispute between the parties. Consent orders are usually made with a great deal of detail, encompassing things such as:
- Whether or not the parties will have equal shared parental responsibility for the children;
- Who the children will primarily live with;
- Who the children will spend time with and how often;
- If the children are not spending time with one party, whether that party will have access to the children via electronic communication;
- How the children share significant days and events with the parties such as birthdays, school holidays, religious holidays, and Mother’s and Father’s Days;
- Where and when handover of the children will take place;
- Interstate and international travel to be undertaken by the children and the protocol surrounding planning for the same; and,
- Should a dispute between the parties arise, how the dispute is to be dealt with.
It should be noted that consent orders cannot deal with any financial support for the children and as such, this aspect should either be dealt with by the Child Support Agency or by the parties privately, preferably through a Binding Child Support Agreement.
When dealing with the future care arrangements of the children of a relationship that has irretrievably broken down, it is important to note that not every case is the same and you should seek legal advice with respect to your individual situation so that you are able to make a decision as to whether a parenting plan or consent orders are the preferred way to finalise the care arrangements for the children.
At Lynn and Brown Lawyers we have three lawyers who practise in the area of Family Law and would be able to assist you or someone you know in relation to all areas of Family Law.
About the authors:
This article has been authored by Tihana Nevjestic, Associate and Jacqueline Brown who is a director at Lynn & Brown Lawyers. Jacqui has over 20 years’ experience in legal practice and practices in family law, mediation and estate planning. Jacqui is also a Nationally Accredited Mediator and a Notary Public. Tihana was admitted in the New South Wales Supreme Court in 2010 and has been practicing in family law since moving to Perth.