Children and Parenting
Astor Family Law helps separated parents resolve disputes about the care arrangements for children after separation. The steps to reaching an agreement with your former partner are as follows:
1. If safe to do so, communicate with your former partner
Though not always possible, the best first step is to work towards communicating with your former partner in relation to the care arrangements for your child or children. The best outcome for children is when separated parents can discuss and agree on practical parenting arrangements that prioritise the needs of the child.
2. Family Dispute Resolution (FDR)
Family Dispute Resolution is a free or low-cost mediation service for separated parents. A professional mediator, known as a family dispute resolution practitioner, will help you work through the issues and reach an agreement. Family Dispute Resolution is often required before starting court proceedings, however, there are some exemptions, such as when you matter is urgent or there has been family violence.
3. Drafting a parenting plan
If you reach an agreement about the care arrangements for children, it can be documented in a Parenting Plan, which is not legally enforceable, but it can demonstrate the intentions of both parents. A Parenting Plan should include details such as where the child lives, the time spent with each parents, communication methods, holiday schedules and guidelines for making important decisions for the child.
4. Consent Orders
An alternative to a Parenting Plan is to formalise your agreement by applying to the Court for Consent Orders. If the Court approves your application, then a Court Order is made in the terms of your parenting agreement and these are legally binding obligations.
If parents are able to communicate and reach an agreement, then it may be possible for the agreement between the two of you to operate informally without the involvement of the Court using a Parenting Plan. It is important to consider that a high level of communication, solid planning and commitment from both parents is necessary for a Parenting Plan to be successful. This includes being able to agree on the long term decisions for children as well as coparenting on a daily basis.
A Parenting Plan is easier to change in the future compared with Consent Orders, for example if you are separating when children are young and the agreement needs to change as the children grow up. Parenting Plan can also be altered quickly and without inexpensively.
The biggest disadvantage of a Parenting Plan is that it is not legally enforceable by a Court, so if your relationship deteriorates over time, or if your former partner is not complying with their obligations, then a Court will not be able to compel the other party to comply with the terms of the agreement.
If you would simply like greater certainty about the care arrangements for children, then you should consider making an Application for Consent Orders to the Court. Consent Orders will create legally enforceable obligations on you and your former partner. If your former partner does not comply with the Orders, then you can apply to the Court for contravention of the Orders and seek a remedy. Astor Family Law regularly helps clients with Consent Orders for parenting, and there are also some good resources online for general reading about parenting orders.
Parenting Plan or Consent Orders?
What if I cannot agree on parenting arrangments?
If you and your former partner cannot reach an agreement, then you will need to file an Initiating Application for parenting proceedings with the Court. Court proceedings are expensive, time consuming and take an emotional toll. The process often involves high levels of stress for you, your former partner and your children.
You application to Court can seek orders for all aspects of the children’s care such as who they live with and when, where changeovers will occur, and where they will go to school. Your application may also include orders restricting interstate and overseas travel without the consent of the other party as well as a provision for the child’s name to be listed with the Airport Watch List.
The Court considers a number of aspects when asked to make parenting orders. The decisions of the Court are fundamentally based on what is in the best interests of the children, which includes to a two-step approach as follows:
The benefit to the child of having a meaningful relationship with both parents.
The need to protect the child from physical or psychological harm or from being subjected to, or exposed to, abuse, neglect or family violence with this factor to be given greater weight of the two primary considerations.
The Court must weigh up the facts of your case and and balance any risks to the child in spending time with one of the parents against the benefit to the child of having a meaningful relationship with that parent. As part of this analysis, the Court will consider the children’s views, depending on their age and maturity.
The Court will also consider whether it is appropriate for the parties to have equal shared parental responsibility. Equal shared parental responsibility means that both parties are able to make decisions about the major long-term issues relating to the children’s care, it does not relate the the time the children will spend with each parent.
If the Court considers that it is appropriate to make an order for equal shared parental responsibility, then the court will also need to consider what time the children will spend with each of you and whether substantial and significant time would be practical given the individual circumstances of your case.
Substantial and significant time means that the children spend time with their parents on weekdays, weekends and holidays, and each parent has the opportunity to be involved in their child’s daily routine. In deciding whether this is practical, the court will consider how far apart the parents of the children live from each other, how equal or substantial and significant time will affect the children, the ability of the parents to co-parent respectfully and effectively, as well as any other consideration it deems relevant.
Astor Family Law has experienced family lawyers who can guide and support you through the court process and make sure you get the best possible outcome for your children.
