Breakups are famously difficult – and you typically go through the motions – from burying your head in ice cream tubs to eventually waking up one day energised and heading straight to the hairdresser for that post-breakup makeover.
When children are involved however – navigating the experience can a whole different ball game. There is plenty of great literature on how to break the news to your children and tips on working through the conflicting emotions.
Anyone who has had personal experience in separating or lived vicariously through a close friend or family members’ breakup can understand what a delicate process “reaching agreement about parenting” can sometimes be.
The Film “Marriage Story” staring Scarlett Johannsson perfectly portrays the process – parents start off promising each other that they’ll talk it through themselves and before either of them know it; can end up in court battling it out and winning points over oft-times petty issues or by manipulating and disclosing private information about the other parent in an effort to win more time with the child.
Needless to say; it’s never a pretty sight and least of all for the child/ren involved.
Some lucky individuals can reach an agreement with respect to parenting. It is imperative that once agreement is reached; each parent seeks independent legal advice without delay and commits to documenting the agreement as soon as possible.
The question that is often raised at this stage is whether the agreement should be drafted in the form of a Parenting Plan or Parenting Consent Orders?
Pursuant to section 63B of the Family Law Act; parents are encouraged to reach an informal agreement between themselves about matters concerning their children by entering into a parenting plan/agreement. The Courts in fact want parents to take responsibility for their parenting arrangements and for resolving parental conflict and to use the legal system as a last resort rather than a first resort.
Parenting Plans are essentially written agreements that are signed by both parents. The agreement can be in plain English and there is no set form or layout so long as it deals primarily with the following:
- Who the child will live with;
- What time can be spent with the other parent;
- How parents are to consult on major long-term issues relating to the child;
- The practical considerations of a child’s day-to-day life.
Parenting plans can be changed between the parents at any time so flexibility and low costs are big drawcards for this method. It goes without saying that the agreement must be entered into without coercion, threat or duress.
The biggest limitation of parenting plans however is that they are not legally enforceable. So if either parent stops complying with the written agreement; there is no legal mechanism you can exercise to have the agreement enforced. If you end up in Court; the Judicial Officer will have regard to the terms of the Parenting Plan but are not bound by the agreement and may make different orders that are in the best interests of the child.
Consent Orders are a written agreement that has been reviewed by a Registrar and found to be in the child/rens best interests before being approved.
They have the same effect as if they had been made by a Judge after a full-fledged parenting hearing. Any person concerned with the care, welfare and development of a child can apply for parenting orders; this including grandparents, aunts and uncles.
Once made; the orders are legally binding until the child/ren turn 18 years of age.
Consent Orders are often the preferable choice where there is a risk that a parent may stray from the agreement. In the event a parent contravenes the agreement; the other parent has the option of applying for a Contravention Application. In this case, the court has various powers including:
- Enforcing the orders;
- Modifying the orders;
ordering the offending party to:
- pay a fine;
- enter into a bond;
- serve a prison sentence, and/or
- pay the legal costs of the other party.
Orders made by the Court cannot be changed unless both parents agree or in the absence of agreement, one parent can prove that a significant change has occurred that was not reasonably foreseeable at the time of applying for the orders.
If Orders are made and a few years later; they become impracticable for the parents and/or child/ren; then agreeing parents can either file for new consent orders or can enter into subsequent parenting plan. Pursuant to Section 64D of the Family Law Act; such a parenting plan would supersede existing consent orders (UNLESS there is a provision in the consent orders noting that the whole orders or a specific order can only be varied by way of a further order of the Court and not a parenting plan).
Feel free to contact Censeo Legal to discuss the most suitable method of documenting your parenting arrangement for your situation.
Partner at Censeo Legal