When a couple with a child or children divorces or ends their de facto relationship, challenges can develop as a result of the dissolution of the marriage or de facto relationship, with the most likely issue being what will happen to the children. Obviously, in family law disputes, it’s the most important consideration.
Among the most significant things to consider when parents separate are parenting agreements and parenting arrangements after separation, such as who will the children live with, when they will live with them, and where they will live with them.
There is a significant degree of flexibility about these child arrangements. The children may sometimes reside primarily with one parent and only see the other parent on a limited basis. That said, the two most prevalent configurations are as follows:
- either the children who live with one parent and spend time with the other on alternate weekends and half of the school holidays;
- or the children who live with each parent on a “week about” basis
What to do when setting out parenting arrangements after separation.
In practice, it is critical to consider the children and their routine before separation, as well as any changes that have occurred following separation. Consider, the ages of the children, whether or not they attend daycare or school, and extracurricular activities in your planning.
According to anecdotal evidence, children of parents who have divorced amicably and who have put in place suitable workable arrangements for their children’s care and financial support tend to have greater coping skills and resilience than children of parents who have experienced parental conflict or alienation in the past.
It highlights the importance of resolving your family law dispute quickly and it is for this reason that at Mediations Australia, we’re early-resolution focused with both family lawyers and mediators ready to help you.
Thinking about separation or divorce?
Disagreements between parents and the use of mediation
There can be major delays in the following areas when there is a parental disagreement about which parent the children should live with or spend time with.
For an interim hearing, expect to wait between 3 to 8 months.
The time it takes to conduct a trial and obtain final rulings governing the custody and visitation of the children might range from 2 to 3.5 years, or even more, in some situations.
Following a hearing, it typically takes a further 4 months for the Court to issue a decision on each case.
In light of the lengthy delays in the courts, and in the event that parents are unable to reach an agreement on the children’s arrangements, we encourage parents to seek private family dispute resolution or mediation in order to try to achieve an agreement. Family dispute resolution normally is without the parties’ lawyers being present, while mediation can occur with or without the parties’ lawyers also participating.
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That said, in order to make the most of the chance to discuss their situation and reach an agreement, we recommend that each party seek independent legal advice prior to engaging in family dispute resolution or mediation. Our family lawyers at Mediations Australia can help in this regard.
Putting a parenting arrangement in writing
When the parties reach an agreement, they can formalise their parenting arrangement by completing and filing a Form 11 Application for Consent Orders, which can be used to address solely children’s issues or both children and financial difficulties, respectively.
To establish agreement on financial concerns exclusively, the parties can use Form 11 Application for Consent Orders, which they can complete and file without seeking orders involving parenting.
What is the impact of restraining orders on parental arrangements?
Restraining orders, which are known by different names depending on which Australian state you live in, may or may not be extended to include the children, and they are not an impediment to the parents making arrangements for the children to spend time with the other parent when they are not living with them.
A restraining order will almost always contain a provision stating that the order will not be violated if the other parent follows the terms of a parenting order or parenting plan (although this must be checked carefully to ensure that it does); and will almost always contain a provision stating that the order will not be violated if the other parent follows the terms of a parenting order or parenting plan (but this must be checked carefully to ensure that it does).
The party who is seeking a restraining order may prefer to have it extended to include the children, or they may wish to have it denied. Exceptions can be included if the parties include the children, and they can state that the restraining order will not be violated if the parties communicate via the following methods ( SMS, text message, or email).
Sometimes, one parent will make claims against the other parent, alleging that the children are at risk of harm or have already been exposed to harm as a result of the other parent’s actions, such as:
- In the case of one parent who suffers from mental health difficulties, they are not compliant with recommended therapy or prescription medication;
- they also suffer from substance or alcohol addiction problems; anger management issues; or family and domestic violence concerns
In this case, the court will take a careful approach and act in the best interests of the children.
Involved in a Parenting Dispute?
What is the purpose of a Parenting Plan?
Creating a parenting plan is beneficial for the following four reasons:
- This written understanding establishes the arrangements, timetable, and obligations for each parent.
- Provide the child with structure and routine.
- It has the potential to lessen the amount of arguments with the youngster regarding time.
- It is flexible and can be modified as your circumstances change.
Not sure what to put in your Parenting Plan?
At Mediations Australia, our family lawyers can help!
How many changes am I allowed to make?
Unlimited modifications. You can send your plan to your lawyer for comments and make any necessary adjustments.
In what ways are a “parenting plan” and a “consent order” different from one another?
A plan is an agreement between two or more people. An Order is a legally binding agreement that is filed with the court and treated as a formality. The difficulty with having an agreement rather than an order is that if one party decides not to follow by the agreement, there is nothing that can be done to ‘turn the ship around.’
What is the point of creating an Order rather than simply having a Plan?
Whenever a court order is in place and something goes wrong, such as when one parent fails to comply with the orders, the other parent has the option of breaching the order or requesting that the courts intervene and aid in more extreme instances.
What about the financial obligations associated with raising a child?
It is necessary to register for Child Support if you have a child who is under the age of eighteen. Child Support is a bare minimum payment towards the expense of rearing a child, and it is calculated according to a formula established by the Child Support Agency (CSA). If you wish to handle the additional costs of raising a child, such as schooling, medical expenditures, and other expenses, you can pair your Parenting Plan with a Binding Child Support Agreement, which will provide additional certainty to financial duties.
What is the difference between Parenting Orders and Parenting Plans and how do they differ?
Everyone wants the best for their children, and this is understandable. When it comes to issues involving children, the Family Courts prioritise the best interests of the children over all other considerations.
Despite the fact that it may appear straightforward, it is common for separated parents to have very diverse beliefs about what type of arrangements are in their children’s best interests. These types of disagreements concerning child-rearing, sometimes known as ‘parenting disputes,’ may be extremely stressful for both the children and their parents.
Frequently, these disagreements develop after a couple has separated and realised that their parenting techniques or priorities are drastically different. The perception of the other parent as a potential danger to the children can arise at any time for one or both parents.
When parents reach an agreement, it is critical that the agreement is documented in a formal manner, just as it would be with any other legal arrangement. In most cases, this will prevent both parties (as well as the children) from having to go through the entire procedure again and again.
Fortunately, the Family Law Act provides parents with two options for achieving this goal: a Parenting Plan and a Consent Order.
Considering a Binding Financial Agreement or Consent Orders?
A parenting plan is a more informal document that must be signed and dated by both parents in order to be effective. The contents of a parenting plan can include items such as:
- who a child will live with;
- who a child will spend time with;
- who will have parental responsibility for the child, which means the responsibility to make major long-term decisions for the child;
- how two people will consult with each other about the decisions to be made;
- who will communicate with a child; and
- who will communicate with a child.
In spite of the fact that parents can create a parenting plan on their own, we urge that a parenting plan be drafted by a lawyer, or at the very least reviewed by a lawyer. Some sections of the parenting plan may have unforeseen repercussions, have loopholes, or just be insufficiently detailed.
If you have been requested to sign a parenting plan, you should consult with a lawyer before proceeding.
Parenting plans do not require the involvement of the court system and are frequently less expensive and faster. The disadvantage of a parenting plan is that if it is violated, you will not be able to enforce it in Court and will be forced to start the Court procedure over from the beginning again.
If you go to court after entering into a parenting plan, the Judge will have to look at what the parenting plan states in order to determine your rights. For example, if one spouse has violated the parenting arrangement, the Judge may enquire as to why this has occurred. Alternatively, if one parent is requesting Court Orders that are diametrically opposed to the parenting plan that they had previously agreed to, the Judge may enquire as to why.
Consent Orders are the alternative option for formally establishing parenting arrangements in a legal sense.
Whenever you go to Court, what you are really doing is requesting a Judge to issue particular Court Orders on your behalf. The application to the Court can be brought jointly by both parents if they both agree on the Orders that should be made. The Court will typically issue these Orders if you have submitted all of the relevant information and your request is in the best interests of the children, as well as being fair and reasonable in nature.
In order to do so, you must prepare an Application for Consent Orders in addition to the proposed Order that you wish the Court to issue. Preparing a proposed Order can be complicated, so we recommend that you consult with a lawyer who can assist you with this process.
Parents will receive a Court Order in the form and conditions that they have requested after the Order is issued.
It is possible that court orders will be rigid, which for some parents may be a positive thing.
Parents can amend the arrangements outlined in the Parenting Orders if they come to an agreement. But if they don’t come to an agreement, the Order will remain in effect. If you have a Consent Order, you will not be able to return to Court unless you can demonstrate to the Judge that there has been a significant change in your circumstances or the child’s circumstances since the order was issued.
Furthermore, if one of the parents violates the Order, the repercussions might be severe. If the parent (the one who did not violate the Order) believes that the other parent has violated the Orders, he or she can file an Application with the Court. Judges have the authority to issue a wide range of orders to put things right, including fines, make-up arrangements, and even modifying the original Court Orders entirely.
The disadvantage of filing an Application for Consent Order is the financial and time commitment it entails.
This formal approach is more time-consuming and expensive than creating a more casual parenting plan informally.
Once your application has been submitted, you will be required to wait for the Court to consider your case, which may take some time. It is also possible that the Court will not be willing to grant the Order that you seek.
The most suitable option
The bottom line is that every situation is unique, and different situations need the use of diverse tactics. Despite the fact that parenting plans can provide greater flexibility at a lesser cost, they lack the ability to be enforced. However, while Consent Orders are more expensive and complex, they provide a higher level of enforceability in exchange.
The next step
At Mediations Australia, we can assist in all parenting dispute matters. We can assist you and your former partner negotiate and we can then assist in the drafting of both parenting plans and consent orders.
What Should You Do Now?
At Mediations Australia, we have a team of family lawyers and mediators who can assist you in Canberra, Perth, Adelaide, Melbourne, Sydney and all other locations in Australia. We also do international family law matters.