The process of separation is often a very challenging and emotional time, particularly when children are involved. Whilst there are many considerations during a family separation, the first priority is often to ensure care arrangements are in place for children. Savanna Bull provides an overview on some of the options parents have for finalising the care arrangements for their children.
If you are a parent who is separated, you might have come across well-meaning advice from friends and family emphasising the importance of having a parenting plan in place for your children. Whilst a parenting plan is one solution for dealing with your parenting matters, it is not the only option available.
Determining what option will be best for you and your family will largely depend on the specific circumstances of your situation.
In this article, we discuss the options for finalising your parenting arrangements and answer some frequently asked questions.
Some parents may never implement a formal parenting agreement and instead opt for an informal agreement.
An informal agreement is most commonly used by parents who are amicable in their separation or who have been following the same care arrangement for an extended period of time. An informal agreement can also be a suitable arrangement for parents that have older children.
Some parents believe that opting for an informal agreement offers a greater degree of flexibility and allows the care arrangements to change depending on the needs of the children.
Informal agreements are not suitable for all families, particularly if there are high conflict matters. The absence of a formal agreement can result in one or both parents not sticking to the agreement, resulting in disagreements or lack of certainty for children and parents.
A parenting plan is a written agreement signed by both parents which sets out the parenting arrangements for a child or children, including:
- how the parents will share parental responsibility and consult about long term decisions for children;
- who the child or children will live with;
- what time the child or children will spend with each parent or any other person;
- how the child or children will communicate with each parent;
- what arrangements need to be made for school holidays and/or special days; and
- what process can be used to change the plan or resolve any disagreements about the parenting plan.
A parenting plan may also be suitable for parents who have reached an interim agreement, or for parents who have young children whose care arrangements may need to change as they get older.
A parenting plan is suitable for parents who want a written agreement without having to go through the process of obtaining a court order. A parenting plan could be beneficial for parents who are trialling a care arrangement, as it can be altered through mutual agreement by creating a subsequent parenting plan.
However, it is important to note that a parenting plan it is not a binding agreement. This means that the agreement cannot be enforced and there are no consequences of a parent for not following the plan, as opposed to a Court order.
Another option available to parents to finalise their parenting arrangements is a Court order. A Court order or parenting order is an order made by the Court, either by agreement or as a result of a court case between the parents.
A parenting order is legally binding and enforceable by law, and failure to comply with its terms may result in legal action or consequences.
A Court order is the best option for parents who want certainty in their care arrangements, and there is little chance that the care arrangements will change in the future. Parenting orders may also be beneficial for parents with high conflict or who have had difficulties in the past agreeing or sticking to the agreement.
Frequently Asked Questions
What if my ex-partner won’t agree to the care arrangements for our children?
Many parents face challenges in reaching an agreement with their ex-partner as to the care arrangements for their children. It can be difficult to agree, particularly when parents have differing views about what is in the best interest of their children.
If you and your ex-partner cannot reach an agreement on your own, we recommend that you seek advice from an experienced family lawyer.
A lawyer can assist you by providing you with advice about how the law deals with care arrangements for children, and provide guidance on how to negotiate and finalise your parenting arrangements with your ex-partner.
Do I need to see a lawyer to finalise my parenting arrangements?
There is no requirement to seek legal advice or have a lawyer represent you. You may elect not to see a lawyer if you have an informal agreement that is working well and there are no risks of harm to the children.
However, it may be in your interest to seek advice from a lawyer to better understand how the law deals with care arrangements for children and what the Family Law Act considers when determining the best interests of children.
If you are seeking a parenting plan or parenting orders, we do recommend that you seek advice from an experienced family lawyer.
Do I have to attend mediation prior to finalising the care arrangements?
There is no requirement to attend mediation, however this may be a cost-effective option if you cannot reach an agreement with your ex-partner.
You can attend mediation with a Registered Family Dispute Resolution Practitioner, who can help facilitate you coming to an agreement on parenting matters and may also assist in drafting a parenting plan.
If you want to start a Court case in regard to parenting matters, you are required to attend mediation and obtain a Section 60I certificate prior to filing your Court Application. There are some exceptions.
Can I vary Parenting Orders?
Parenting Orders can be changed or varied in limited circumstances, either by agreement of both parents or if there has been a significant change in circumstances. If there is no agreement, an Application to the Court can be made to have the Orders changed or varied.
Even if the Court is satisfied that there has been a significant change in circumstances, the Court also has to be satisfied that any proposed change to the orders is in the best interest of the child or children.
We at Orbell Family Lawyers specialise in family law. We help separating families make arrangements for their children without going to Court, ensuring they have certainty and can move on with their lives.
If you would like further information in regard to this article or your family law matter in general, please contact us.
Mention this article when you call to receive a free 15-minute discovery call with one of our experienced family law solicitors.
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The information contained in this article is provided for information purposes only and should not be construed as legal advice.
This article was originally published in On the Coast Families Magazine – June/July Edition – pages 24-25