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 During the separation process it is crucial to keep the best interests of your children foremost in mind. Separation and divorce cause major disruption to children’s lives. How this disruption will impact upon your children’s self-esteem and long-term development will be directly influenced by your ability and that of your former spouse to communicate with each other and your children during this period and in the long term.
Regardless of whether you and your former spouse have been married, the law dealing with children’s living arrangements (currently referred to as “live with/spend time with arrangements” but more commonly known as “custody”/ “residence” and “access”/“contact”) is the Family Law Act 1975.
Other than in certain limited cases (involving urgency and/or issues of family violence), the law requires any party considering applying to the Courts for Parenting Orders (other than Consent Orders) to first attend mediation. In fact, a certificate known as a Section 60I Certificate, from an accredited Family Dispute Resolution Practitioner, must be filed with the Court at the time of making an Application for Parenting Orders to prove that mediation has been attempted.
There are essentially four ways parenting arrangements can be made:
1) Informal Agreements
2) Parenting Plans
3) Consent Orders
4) Court Orders after a contested Court Hearing
Informal Agreements
Informal agreements involve separated parents working co-operatively with each other to jointly make decisions concerning their children’s day-to-day lives, as well as making decisions of a significant long-term nature.
By their very nature, these agreements are informal and do not need to be formalised into a written document. Informal Agreements work best where there is a level of trust between the separated parents regarding the parenting of their children.
Informal agreements are not enforceable by the Courts. If they should break down or are not complied with, it might be necessary to apply for formal Court Orders to re-establish parenting arrangements.
Parenting Plans
Parenting Plans are similar to Informal Agreements in that they are agreements reached between separated parents. They might also include arrangements about how your children should spend time with their grandparents and other significant people in your children’s lives.
Unlike informal agreements, Parenting Plans are formalised into written documents signed by both parents. However, as with Informal Agreements, Parenting Plans are not themselves enforceable in the Courts and rely upon the co-operation of the separated parents to work effectively.
Consent Orders
Like Parenting Plans, Consent Orders are agreements reached between parents. They are formalised into written documents. Once signed by both parents, the Orders are forwarded to the Family Court for approval. In most cases this does not require the need for the parents to attend the Court for the Orders to be made.
Consent Orders provide certainty and are enforceable by the Court if a contravention (otherwise known as a “breach”) occurs. As Consent Orders are more formal in nature there are requirements in the way they are drafted. Generally though, Consent Orders can cover most issues covered by Informal Agreements and Parenting Plans. They can be as prescriptive as your circumstances require.
Legal advice should always be sought before signing Consent Orders as they are legally binding and serious consequences flow from contraventions (or breaches) of them.
Court Orders after a contested Court Hearing
These are Orders made by the Court after a formal hearing. The process involves each parent filing an Application containing the Orders they seek as well as a Section 60I Mediator’s Certificate (unless an exemption applies). The dispute has to be set down for a formal hearing. It is usual for each parent to be represented by a solicitor and barrister. The Court may also order that the children are to be represented by a separately-appointed solicitor and barrister known as an Independent Children’s Lawyer.
There are few benefits to parenting arrangements being made in this way. A stranger (for example: a Judge or Federal Magistrate) will decide what arrangements will be made for your children.
There is likely to be significant delay between the filing of the Court Application and the hearing. The hearing process, being adversarial in nature, is likely to exacerbate any existing issues between the parents and will probably cause new ones. The costs of Family Court proceedings are likely to be very significant.
Court Orders after a contested Court hearing are legally binding and serious consequences flow from contraventions (or breaches) of them.
What is best for my family?
Each arrangement has its advantages and disadvantages. Many separation parents are able to co-operate with their ex-spouses and enjoy the flexibility of Informal Agreements. Others prefer the certainty that enforceable Consent Orders create.
Every family’s circumstances are different and there are long-term legal consequences to be considered in making parenting arrangements. We strongly recommend that you seek legal advice if you are considering separation and you have children.
The Family Court of Australia has a number of very useful brochures about separation, parenting and children’s issues.
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