Children’s care arrangements following separation

Following a separation parents do not have to go to Court about the care arrangements for their children. As a matter of principle we encourage our clients to reach an agreement if possible without the need to resort to the Family Law Courts.

Parents who are able to reach an agreement regarding care arrangements for their children have two ways to formalise their agreement. If you and your former partner agree on the future arrangements, you can either make a parenting plan or obtain Consent Orders approved by a Court.

Regardless of how your agreement is formalised, the arrangements should be in the best interests of the children.

Parenting Plan

A parenting plan is a written agreement that is made between the parents of a child. The agreement is signed by the parents, is dated, and deals with matters in regards to the care arrangements for the child. You do not need to go to Court for a parenting plan to be entered into.

Parenting plans can also deal with child support payments.

However, it should be noted that a parenting plan is not a legally enforceable agreement. Therefore parents who elect to enter into a parenting plan are often those parents without issues regarding trust, reliability, or dishonesty regarding the other parent. If there are real and serious issues between the parties then a parenting plan may not be ideal.

Putting it another way, parenting plans are very useful where parents can cooperate and agree but wish to have the arrangement put in writing to provide clarity.

Consent Orders

The second option available to formalise any agreement is to ask the Court to make ‘Consent Orders’ approving the terms of the agreement between the parents.

Consent Orders can only deal with the care arrangements for children and cannot deal with child support for the child that is the subject of the Consent Orders. A separate Binding Child Support Agreement would be required for this purpose.

The care arrangements which the Consent Orders can deal with include but are not limited to:

  • whether the parents are to have equal shared parental responsibilities or specify the division of parental responsibilities between them
  • if two or more persons share parental responsibilities, the form of consultation required between the persons
  • with whom the child lives
  • whether the child will spend equal time with each parent or “substantial” and “significant” time with a parent, including specific details of how the child will spend time with each parent
  • the child spending ‘special days’ with each parent such as Christmas, Easter, birthdays, Father’s Day and Mother’s Day as examples
  • the time a child will spend with a grandparent or other relative
  • the communication a child will have with another parent or person
  • any aspect of the care, welfare and development of the child, including education (the school the child will attend), health, religion and cultural aspects
  • The arrangements for either parent to travel internationally with the child, including practical measures such as the renewal of passports

It is important to note that Consent Orders are enforceable by the Court. This is because they are filed in the Family Court of Australia and become an Order of the Court. In these circumstances, if a parent fails to comply with the Order without the consent of the other parent, it is possible to ask the Court to enforce the Order.

In cases where there is a risk that one parent will not return the child to the other parent after they have spent time with that parent, the other party will find this beneficial.

This article is intended to provide general information only. You should obtain professional advice before you undertake any course of action.

If you know someone who may need assistance, call us on 03 8415 5600 or email us reception@hartleyslawyers.melbourne for more information.

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