Following a divorce or separation, it can sometimes be difficult for parents to set aside emotions and make decisions on parenting arrangements that are in the best interests of their children.
When setting out arrangements for children, you and your former partner have the option of obtaining legally enforceable parenting orders, ideally by agreement, or entering a less formal, more flexible parenting plan. In deciding which option is most suitable, it is helpful to obtain legal advice and assistance from an experienced family law specialist.
While most parents manage to work out a satisfactory arrangement for the care of their children with proper legal support, if there are issues and disputes between the parents, it is important that you understand your rights and obligations under the Family Law Act and the pathway the courts follow in determining any disputes concerning children’s matters.
The court supports children having a meaningful relationship with both parents and others, but it is always subject to protecting children from violence and abuse and guided by the principle that the children’s best interests are of paramount consideration.
What is a Parenting Plan?
A parenting plan is a written agreement that is made voluntarily between children’s parents. It sets out the day to day living arrangements concerning the children and their welfare, and how decisions will be made about important issues such as their health care and education. The plan can include other people important in a child’s life, like grandparents and step parents.
Parenting plans are often made when the parents are cooperative and on reasonable terms regarding arrangements for the children. They are not legally enforceable however may be taken into consideration if the parties later start court proceedings concerning the children. A party to a parenting plan may also make an application for the court to make orders in the same terms as the plan. In this case, the orders become legally binding.
What are Consent Orders?
Consent Orders are legally binding orders that are formally approved by a court upon the request of the parties. In granting the orders, the court must be satisfied that the terms are in the best interests of the children. In addition to dealing with arrangements concerning the children, consent orders may also deal with other matters such as the division of property and spousal maintenance.
Consent Orders have the same effect as if made by a court after a hearing. If either parent (or any other person included as a party to the Consent Orders, such as grandparents) does not comply with the terms of a Consent Order, the other party is entitled to make a Contravention Application with respect to the breach, and the defaulting party may be sanctioned by the court.
Matters typically covered by Parenting Plans and Consent Orders include:
- whether the parents are to have equal shared parental responsibility for the children, and if not, the division of parental responsibility between them;
- which parent the child will ordinarily reside with;
- whether the children will spend equal time with each parent or ‘substantial’ and ‘significant’ time with a parent;
- provisions for the child to spend special days with each parent such as Christmas, Easter, birthdays, father’s and mother’s days;
- 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 parties share parental responsibilities, the form of consultation required between them;
- any aspect of the care, welfare and development of the child, including education, health, religion and cultural matters.
Going to Court
If you and your former partner are unable to resolve your dispute, an application to the court may be necessary.
When filing an application, a Family Dispute Resolution Certificate must also be filed confirming that the parties have attempted compulsory Family Dispute Resolution (FDR), unless an exemption applies.
FDR is a form of mediation that supports separating and divorcing couples in resolving disputes and reaching their own agreements about parenting issues, without going to court.
You may be exempt from attending FDR if your matter is urgent, or if there has been family violence or abuse, or if the application is related to a contravention of a previous order.
We are devoted to ensuring the welfare of your children and protecting and preserving their best interests in any parenting dispute and encourage our clients to reach practical, workable solutions for their children, without resorting to court proceedings. We provide clear advice and guidance from start to finish, assisting you in the early resolution of disputes and encouraging your participation in FDR.
If you need any assistance, contact one of our North Sydney family lawyers at [email protected] or call 02 8075 0141 for a no-obligation discussion and for expert family law advice.