Making Parenting Arrangements for Children

If you have recently separated from your partner and are considering making parenting arrangements for your child or children, it may be useful to be aware of the information presented on this page. If you have not been able to reach an agreement in relation to parenting and would like to know more about your available options, then give us a call.

You can call our NSW, Victoria or ACT offices using the following numbers.

NSW: 02 9045 2600

Victoria: 03 8376 7000

ACT: 02 6115 9000

What is a parenting plan (parenting agreement)?

A parenting plan is an agreement about parenting arrangements. The plan can be informally documented in writing and signed by both parents and is a good way to avoid the time and expense involved in having formal orders made by the Court. It is important to be aware that parenting plans are not legally enforceable agreements. They can, however, be used as evidence of your intentions should your parenting arrangements ever have to be decided by a Court in the future, and the Court has to make orders in line with the most recent parenting plan if the Court finds that those arrangements are in the best interests of the child or children.

Generally, parenting plans work best where you and your partner are relatively amicable and are able to communicate well with each other and without a great deal of conflict. Obviously some conflict is inevitable when parents separate, but the important thing is that the two of you agree on what is in the bests interests of the children and are able to co-parent accordingly.

If you are unsure whether you and your partner are suited to having an agreement such as a parenting plan in place for the care of your children, it’s best to get legal advice before agreeing to or signing anything. Our experienced staff at Farrar Gesini Dunn will be able to help you understand which option will be best for you and your children.

Making a parenting plan (parenting agreement)

A parenting plan is essentially an agreement between you and your ex-partner in good faith. Therefore, if a parenting plan is an option you are considering, it is best to avoid causing angst or distrust from the outset.

When considering making parenting arrangements for your kids, it is useful to be aware of the kinds of things that can come up that can cause angst or create distrust if not discussed early. Here are some examples, just to name a few:

  1. What time the kids will spend with each of you.
  2. Whether notification of inter-state travel needs to be given to the other parent.
  3. What school your kids will go to.
  4. Arrangements for time the children will spend with each of you on special occasions, like Christmas and Easter.
  5. What each of you expect your kids will have with them when they travel to your house, or to the other parent’s house.
  6. Calling your children by the surname that is on their Birth Certificate.
  7. Under what circumstances overseas travel will occur.

Upon the two of you deciding to separate, it is good to discuss these types of major issues straight away and perhaps ensure that they form part of the parenting plan so that the two of you are on the same page from the beginning.

When there is an agreement as to parenting

Written Parenting Plan Vs Consent Orders

There are two different ways to formalise parenting arrangements for your children. The first is an informal arrangement, or a parenting plan, and the second is through the making of Consent Orders through the Court.

Parenting Plans

Based on the individual circumstances of your case, 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. This is an ideal outcome, but it is important to note that a great deal of amicable communication as well as planning and commitment from both sides is required for this type of arrangement to operate successfully. The two of you will also need to be able to agree on the long term decisions for the children as well as be able to co-parent on a day to day basis.

The advantage of a parenting plan is that they are easier to alter in the future than Consent Orders are. This means that if you are separating when the children are relatively young, and the agreement needs to change as the children grow up, the agreement can be altered inexpensively and quickly by agreement between the two of you.

The disadvantage to parenting plans is that these are not legally enforceable by a Court, so if the relationship between the two of you deteriorates over time, for example, and the other party doesn’t hold up their end of the bargain, a Court will not be able to compel the other party to comply with the terms of the agreement.

Consent Orders

If a parenting plan doesn’t sound like something that is suitable to you and your partner based on your individual circumstances, or the two of you would simply like more certainty in this regard, there is the formalised option of making an Application for Consent Orders to the Court.

It is best to seek the help of a solicitor when preparing an application of this nature so that you can truly understand the effect of any Orders that are made. Your solicitor will file an Application for Consent Orders along with a draft copy of your proposed parenting Orders with the Court. The Registrar of the Court will then normally make these Orders, without either you or your ex-partner having to appear in court.

Any Consent Orders that are made are legally enforceable upon you and your ex-partner. If either party chooses not to comply with the Orders, the other party can seek relief from the Court for contravention of the Orders and the other party will be compelled to comply unless the Court is satisfied that the children would be at risk if the Court were to do this.

At Farrar Gesini Dunn we can help you with the drafting and filing both parenting plans and Consent Orders.

When there is no agreement as to parenting

If you and your ex-partner are unable to come to an agreement in relation to parenting, you may feel as though commencement of proceedings in Court is the only option available to you.

It is important to know that even if you do make an application to commence proceedings with the Court, there is a legislative requirement that you and your partner undertake some form of Family Dispute Resolution. You will need to provide a certificate to the Court which shows that you and the other party have completed this requirement and have made a genuine effort to come to an agreement prior to beginning proceedings. In cases with extenuating circumstances, particularly with respect to urgent applications to the Court involving significant risk to the children, the Court will grant an exemption to this requirement.

The requirement involves a mediation session. The aim of mediation is to try and come to an agreement together with the help of a mediator who will guide the discussion and will make suggestions to both parties about what is a reasonable arrangement.

If you and the other party are unable to come to an agreement at mediation and you do proceed to a hearing, it will take as long as 6-12 months for a Final Hearing to be scheduled, except under limited exceptional circumstances. It is therefore in both your best interests, as well as in the best interests of the children, for you and the other party to come to an agreement between yourselves.

The solicitors at Farrar Gesini Dunn can assist you in navigating this process and will work with you to help you understand what a reasonable agreement is in your individual circumstances.

What if parents cannot agree?

Family Law Mediation (Family Dispute Resolution) in Parenting Matters

Family law mediation, also known as Family Dispute Resolution, is a process option available to parents to try to negotiate post separation parenting arrangements that are in the best interest of their children. It also encourages separating couples to parent cooperatively, rather than through other process options such as Court that can create conflict.

Since 2006, it has been a requirement under the Family Law Act that separated couples attend, and make a genuine effort to resolve their parenting dispute through mediation before they are able to ask the Court to make parenting Orders. There are exceptions to this however, including:

  • Circumstances of urgency, such as your child spending no time with you;
  • There has been, or there is a risk of, family violence; or
  • There has been abuse of the child, or there is a risk of abuse.

If the mediation is run by an authorised Family Dispute Resolution Practitioner, they can then issue a certificate that allows you to file an Application in Court if you can’t reach an agreement and have either attempted mediation or fall under one of the exceptions.

The Family Court outline their objectives in making mediation compulsory as a first step for parenting matters as being to:

  1. “encourage early and full disclosure through the exchange of information and documents about the prospective case.
  2. help people resolve their differences quickly and fairly, and to avoid legal action where possible. This will limit costs and hopefully avoid the need to start a court case.
  3. help parties (where an agreement cannot be reached out of court) to identify the real issues in dispute. This should help reduce the time involved and the cost of the case.
  4. encourage parties to seek only those orders that are realistic and reasonable on the evidence.”

Mediation is just one of the many options available to help you to come to an agreement about parenting matters, and avoid Court.

We have qualified mediators and lawyers trained specifically in assisting parties in the mediation process, so please contact our team if you are thinking about exploring mediation as a process for coming to agreement about your parenting arrangements.

What is co-parenting?

Co-parenting is the ability for two separated or divorced parents to work together and respectfully communicate with each other about issues relating to the children. This may involve making decisions together on a day to day basis as to smaller issues which arise and keeping each other informed about developments in the child’s life, as well as making long term decisions such as where the children go to school, for example. In short, co-parenting is about the two of you keeping the best interests of your child or children at the forefront of your mind despite the issues that may exist between the two of you.

Keeping the best interests of the children at the forefront of everything you do is important because when a Court is considering making orders either by consent or in the course of proceedings before it, the Court will consider what arrangement will be in the best interests of the children. This is a legislative requirement that is codified in section 60CC of the Family Law Act 1975. The Court will take a two-step approach in considering whether an arrangement is in the best interests of the children:

  1. The benefit to the child of having a meaningful relationship with both parents (“meaningful relationship”); and
  2. 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 (“risk to the child”).

Think of this process as being a balancing act; if the risk to the child in spending time with one of the parents outweighs the benefit to the child of having a meaningful relationship with that parent, the Court will not make an order for substantial or significant time with that parent.

Co-Parenting facilitates the first step of this approach – the benefit to the child of having a meaningful relationship with both parents. If you and the other party are amicable and there are no serious issues such as domestic or family violence in the relationship, then it will certainly be in the children’s best interests to maintain a meaningful relationship with both of you.

However, if there are serious issues such as allegations of domestic or family violence or abuse that are made against one party, the Court will weigh this against the benefit to the child. Likewise, if you and the other party are unable to co-parent effectively and respectfully and there is a great deal of conflict in your communication and in the co-parenting relationship that the children may be exposed to, the Court will likely weigh this against the benefit to the child of having meaningful time with one of you. Therefore, it is in the best interests of all involved if the two of you are able to look past the issues that exist between you and co-parent amicably about the children.

How do I apply for Parenting Orders?

If you and the other party can come to an arrangement between yourselves regarding the care of the children moving forward, then the two of you can file an Application for Consent Orders and a copy of your proposed orders with the Court. Although there are ‘do it yourself’ kits available from the Court, it is often best for each of you to consult a solicitor when considering this type of application so that you and the other party completely understand the effect of the Orders, as well as to ensure that the Orders and the Application are drafted correctly.

If you and the other party are unable to come to an agreement, you will need to file an initiating application for parenting proceedings with the Court and go through the Family Dispute Resolution process in order to get to the point where the Court will make Final Orders on your behalf. Though you can complete this process as a self represented litigant, it is inadvisable to do so given that the process can be complex. You should consult a solicitor before initiating proceedings.

Making an initiating application with the Court is a far more expensive and time consuming process than if the two of you were able to come to an agreement between yourselves and often involves high levels of stress for both you, the other party as well as your children. Unless there are high degrees of family or domestic violence and there is a risk of engaging directly with the other party, the two of you should try and come to an agreement between yourselves prior to making an initiating application with the court.

Consent Orders as well as Orders made by the Court can include 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. They 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.

Orders regarding interstate and overseas travel and listing the child’s name on the Airport Watch List are usually made where there is a high degree of conflict between the parties and where there is a concern that the child will be removed from the state or the country by the other parent.

Whether these orders are included will depend on the individual circumstances of your case, however notwithstanding whether or not there are orders in relation to these issues, it is always advisable to consult the other party and keep them in the loop when considering interstate or overseas travel so that there is no potential for miscommunication.

What the court considers when making parenting orders?

The Court takes into consideration a number of aspects when asked to make parenting orders. Ultimately, they consider what will be in the best interests of the children. In making that consideration the Court will look to a two-step approach, namely:

  1. The benefit to the child of having a meaningful relationship with both parents (“meaningful relationship”); and
  2. 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 (“risk to the child”).

Think of this process as being a balancing act; if the risk to the child in spending time with one of the parents outweighs the benefit to the child of having a meaningful relationship with that parent, the Court will not make an order for substantial or significant time with that parent.

Within these two factors, the Court will consider the children’s views, taking into account 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. The Court will presume that it’s in the child’s best interests for both parties to have equal shared parental responsibility unless there has been child abuse or family violence.

If the Court considers that it is appropriate to make an order for the parties to have 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 involves the children spending time with their parents on weekdays, weekends and holidays, and each parent having 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.

Along with your initiating application and supporting affidavit, which is a document that provides the Court with your evidence to support your application, you will also need to file a Notice of Risk. This is a document which notifies the Court whether or not there is a risk to the children in spending time with the other party. If the Court decides that there is a risk to the children in spending time with the other party, the Court will take this into consideration when deciding how much time the other party is allowed to spend in their care.

If you have not been able to reach an agreement in relation to parenting and would like to know more about your available options, then give us a call. At Farrar Gesini Dunn we are committed to helping you reach an agreement and always treat Court as a last resort.

Grandparents Rights

The Family Law Act 1975 specifies grandparents as being included in the category of people with whom the child should maintain contact. However, in order for a grandparent to have significant or substantial time with their grandchild or for their grandchild to live with them, they will need to make an application to the Court – they do not have an automatic right.

The Court will only make an Order for substantial and significant time with a grandparent, or for an order for residency where the Court considers it to be in the best interests of the child. In this regard, the Court will likely make an order where the parents of the child are unwilling to care for the child, are unable to care for the child, or lack capacity to care for the child.

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