During a separation many couples are able to put aside their differences to focus on the best interests of the children, despite the common misconception that ‘separation often turns ugly’.
If this sounds like you and your former spouse, you do not necessarily need to go to Court to finalise orders in relation to your children. Instead, you can document your agreed parenting arrangements in relation to your children in a parenting plan, which is less formal than court orders, however is not legally binding.
A parenting plan is a written agreement that is entered into by the parents. The plan can address a range of issues pertaining to the children, including:
1. who the child/ren live with;
2. how much time they are to spend with each parent during school term, holidays and special occasions such as Christmas, birthday, Mothers and Fathers day etc;
3. who is responsible for making decisions about long term issues such as health, schooling, place of residence; and
4. sharing of information pertaining to the child/ren such as health and school reports.
Some advantages of entering into a parenting plan include:
1. it is a faster and more cost effective option than going to Court;
2. you have control over the outcome as opposed to a Judge deciding what is in your child/ren’s best interests;
3. it is a flexible and creative process with no rules of evidence; and
4. due to the flexible nature of the agreement, parenting plans can be changed easily with minimal expense, which is particularly helpful with younger children, as their circumstances are continuously changing.
A parenting plan may not be for everyone. Circumstances which may make a parenting plan inappropriate or impractical in your circumstances include:
- if you are unable to communicate effectively with your ex-partner or you cannot come to a mutual agreement on aspects of your child/ren’s care;
- if there are any concerns in relation to the safety of yourself or the child/ren or a history of domestic violence;
- where your ex-partner is unlikely to abide by the terms of the parenting plan;
- if you require the agreement reached to be binding and enforceable on both parties;
- if you need documentary evidence that either you or your ex-partner are solely responsible for the child/ren; and/or
- if your matter includes the distribution of property/assets from the relationship.
An alternative to a parenting plan is to obtain consent orders, which are formal and binding orders issued by the Court. Similar to a parenting plan, Our Gold Coast Lawyers can draft consent orders to evidence the agreement reached between the parties, followed by an application to the Court for the orders to be made by agreement. This process is relatively simple and the parties are not necessarily required to appear at Court.
Court Orders are more costly than a parenting plan as they usually involve lawyers to assist with the drafting, and there are also court filing fees that may be applicable. However, they are binding and enforceable at law, with consequences in place if a breach occurs.
In the event that you and your former spouse are unable to agree on arrangements with respect to the children, our experienced Family Lawyers can assist you with commencing proceedings in the Family Court for a Judge to decide Parenting Orders on your behalf.
Please be advised that prior to filing proceedings, you will be required to attend a mediation and obtain a dispute resolution certificate.
While a Court cannot enforce a parenting plan, they can and often will consider any previously agreed parenting plans should a parenting dispute arise before the Court in later proceedings.
With the flexibility of a parenting plan and the legally binding nature of Consent Orders and Court Orders, it is clear that all of the options have advantages and disadvantages. Therefore, it is important that you seek independent legal advice to determine which option is best for you and your family. Feel free to contact our friendly family lawyers today on 07 5563 8970 to discuss your specific matter.