The Family Law Act stipulates that the best interests of the child as the most important consideration when deciding on parenting matters. Put simply, the law does not recognise the right of a parent to have a relationship with their child, rather it is the right of a child to have a meaningful relationship with both parents.

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Children are often central to post-separation disputes, and it is not uncommon for parents not to see eye-to-eye. Studies consistently show that it is not the divorce or separation that has the greatest negative effect on children, it is the ongoing conflict between the parents. Children who are exposed to long periods of conflict perform worse at school, are less likely to form secure relationships in adulthood, have lower self-esteem, and suffer significantly higher rates of both physical and mental disorders throughout their lives.

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Fortunately, most parents who separate are able to decide between themselves what is the best arrangement for taking care of their children. A solution reached by agreement is likely to work better for everyone than one imposed by a court. Parents who agree about the arrangements for their children can:

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• Keep it as an informal agreement;

• Make a parenting plan; or

• Apply to the court to approve consent orders.

 

Parenting plans

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A parenting plan is a private agreement between parents on the care arrangements for their children. A parenting plan can be changed, or terminated at any time by written agreement between the parties. A parenting plan may also contain provisions relating to child support, but they will have no effect unless the specific provisions under sub-section 84(1) of the Child Support (Assessment) Act 1999 are satisfied.

 

A parenting plan must be:

• In writing;

• Signed and dated by both parents;

• Contain terms that deal with parental responsibility, who the child lives with, spends time and communicates with, child support and other issues; and

• Must be made voluntarily.

 

Although not legally enforceable, Parenting Plans can also be used as evidence of an agreement between you and the other party. They can also be used to alter previous court orders provided those orders allow for changes by way of a parenting plan. Of course, the new arrangements agreed in the parenting plan are also legally unenforceable while they remain in this form.

 

Parenting orders by consent

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Parents who can reach agreement can also file the terms of their arrangement by way of consent orders in the court. Unlike parenting plans, orders that have been approved by the court are enforceable. Consent orders are by far the most popular method of formalising an agreement whether it is reached privately, in family dispute resolution or by negotiation between lawyers.

 

You can apply for consent orders without starting a case against the other party by way of an Application for Consent Orders. Like Parenting Plans, issues to cover in consent orders include;

• Parental responsibility;

• Who the child will live with;

• Time to be spent by the child with each parent;

• Communication between the child and each parent;

• Provisions for changes in arrangements as the child gets older;

• Parental consultation and joint decision arrangements; and

• Dispute resolution arrangements.

 

Parenting orders made by a Judge

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Parents who are having trouble negotiating the care arrangements of their children are required to attempt mediation before initiating proceedings in court. The exception to this rule is if there is family violence or child abuse. In most cases however, it is compulsory to attempt family dispute resolution (FDR) before filing an application to court. Important tip, make sure that whomever you see for FDR can provide you with a Section 60i certificate.

 

Without this certificate, the court cannot hear an application for parenting orders except in limited circumstances. If either you or your partner refuses to participate in family dispute resolution, it may be taken into consideration when the judge is deciding whether or not to make a costs order.

 

You will not need a section 60i certificate where:

• The application is made by consent;

• The application is in response to the other party’s application;

• The court is satisfied that there is a risk of child abuse or family violence;

• The application is about a contravention of parenting orders that were made in the previous 12 months and the person who breached the orders showed serious disregard to the orders;

• The application is urgent; or

• A party is unable to participate i.e. due to disability or lack of services available in their area to engage a professional who can issue a certificate.

 

If you are unable to obtain a certificate, you will need to provide an affidavit explaining why.

 

At Sapphire Legal, we encourage clients to use family dispute resolution services to avoid conflict as early as possible. We urge our clients to adopt a child-centred approach and not to take “positions” on issues about the children that are designed simply to punish the other side.

 

The advice you receive from us will be based on your unique circumstances and finding a solution that is in the best interests of you and your children. It is important however that any proposed or existing arrangement is truly in your child’s best interests and is both realistic and workable.

 

If you are unable to negotiate an agreement with your former spouse about the care of the children, we can help you prepare a Court Application for parenting. Many matters are resolved after proceedings are commenced through court appointed mediation and further negotiations. If this fails, a Judge will ultimately decide what is in the best interests of your children after considering all the evidence at a Final Hearing.

 

Please contact Gayle to make an appointment if you have a parenting matter. Whether you need assistance formalising a negotiated agreement or applying to the court, Sapphire Legal can help.