As parents, we all want what’s best for our children. But if you and your partner are separating or divorcing, circumstances can become so emotionally charged that it can become difficult to know how to move forward and how agree on parenting arrangements.
Here’s what you need to know.
Do I need to go to Court for a parenting agreement?
“Parenting” is what was formerly known as “child custody law.”
You and your ex-partner can agree on how your child will divide their time through your own negotiations, with the help of lawyers, or as part of a family dispute resolution process. Agreements can also include decisions about:
- With whom the child will live.
- How much time the child will spend with each parent, and sometimes with other important people in their lives, for example grandparents.
- Who is responsible for what (for example payment of school fees, transporting children to and from school each day).
- How a child will communicate with the important people in their lives, for example the parent they are not living with, relatives, close friends.
- Any other things to ensure the care, welfare or development of the child.
If you go through family dispute resolution, this would normally take place as part of legal proceedings in the Family Court or the Federal Circuit Court.
To make the arrangements, a written agreement is made. This is referred to as a ‘parenting plan’. This can be drafted by you or with the help of a lawyer. It can be done without the need for litigation. You and your ex-partner can reach an agreement that suits you both and is in the best interest of your children.
It’s really important to understand that parenting agreements are not legally enforceable. This means that if one party breaches the agreement, it may be difficult (or impossible) to take legal action against them to enforce the agreement.
Despite this, negotiating a parenting plan rather than starting legal proceedings is a good way to try and ensure a good future relationship with you ex-partner.
How do I make sure that my ex-partner sticks to the plan?
There isn’t any way of ensuring that your ex-partner will stick to the terms of a parenting plan. That’s why we recommend parenting agreements only for clients who are confident that their ex-partners will toe the line.
If you want your parenting plan to be legally enforceable, you can make an application to court so that orders can be made. Court orders are legally binding, meaning that both you and your ex-partner must obey them. Failing to comply with a parenting order may lead to penalties being imposed. They depend upon the extent to which the order was breached and may include:
- Changing the order.
- Ordering a parent to attend a parenting programme.
- Entering into a good behaviour bond.
- Ordering payment of legal costs or compensation for lost time or reasonable expenses.
- Community service.
Parenting orders can only be made by consent. That is, you and your ex-partner must both agree to the orders being made.
What if we can’t reach agreement?
If you and your ex-partner can’t reach an agreement for the care arrangements of your children, you may need to apply to court for parenting orders. This is a different application from the application you would file for consent orders (above).
Before you file an application you will need to obtain a certificate that says that you have attended or attempted to attend family dispute resolution. But if there is a history of family violence or child abuse, the court may not require you to complete this step.
This kind of application will be contested because you and your ex-partner can’t agree. That means that the court will have to decide what’s best. To do that, it will conduct a hearing. Both parties will present evidence to the court (witnesses and documents) and legal arguments.
What will the court consider?
A court will consider what is in the best interests of the child when making parenting orders. The Family Law Act sets out a series of things that the court must consider to work this out, including:
- The child being able to have a meaningful relationship with both parents.
- The need to protect the child from physical and psychological harm.
The court will also consider (to a lesser extent) the child’s wishes and a range of other factors.
Do I need a lawyer?
Parenting issues are often far more complicated than they first appear, especially when there is disagreement. Family lawyers (sometimes also known as “child custody lawyers”) are highly skilled at assessing parenting issues, providing advice and working out strategies that best suit you and your children. We highly recommend that you use a lawyer for any parenting issue but especially if:
- You wish to seek parenting orders so that your parenting plan is legally enforceable.
- You and your former partner are unable to reach an agreement about the care arrangements for your children.
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