Separation and divorce can cause major disruptions to children’s lives. As parental conflict can have a significant impact upon children’s self-esteem and long-term development it is critical separating parents:
- Avoid involving the children in their conflict.
- Assure their children they are not the cause of the separation and that both parents love them.
- Communicate and act civilly in front of their children.
- Remember their children are also experiencing significant changes and distress.
Regardless of whether you and your former spouse were married, a de facto couple, in a GLBTIQ relationship or never lived together, 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 (such as urgency and/or issues of drug/alcohol abuse, family violence or mental health issues) the law requires anyone considering applying to the Courts for Parenting Orders (other than Consent Orders) to first attend mediation. A certificate known as a Section 60I Certificate, from an Accredited Family Dispute Resolution Practitioner (mediator), 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:
- Informal Agreements
- Parenting Plans
- Consent Orders
- Court Orders after a contested Court Hearing
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 may be necessary to apply for formal Court Orders to re-establish parenting arrangements.
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 their lives.
Unlike informal agreements, Parenting Plans are formalised into a written document signed by both parents. Like Informal Agreements, Parenting Plans are not in themselves enforceable by the Courts and rely upon the co-operation of the separated parents to work effectively.
Like Parenting Plans, Consent Orders are agreements reached between parents and formalised into a written document. Once signed by both parents, the Orders are sent to the Family Court of Australia for approval along with a document called an Application for Consent Orders. In most cases you will not need to attend the Court for the Orders to be made.
Consent Orders provide certainty and are enforceable by the Court if a contravention (“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 or flexible as your circumstances require.
Legal advice should always be sought before signing Consent Orders as they are legally binding and serious consequences flow from contravening them.
Court Orders after a contested Court Hearing
These are Orders made by a Justice of the Family Court of Australia or a Judge of the Federal Circuit Court of Australia after a formal hearing. Typically, each parent is represented by a solicitor and barrister at a hearing which may last for several days. The Court may also order that the children are represented by a separately-appointed solicitor known as an Independent Children’s Lawyer.
There are few benefits to parenting arrangements being made in this way. A stranger will decide your children’s living arrangements whether you agree or not.
Court Orders after a contested Court hearing are legally binding and serious consequences flow from their contravention.
What is best for my family?
Each arrangement has its advantages and disadvantages. 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.