You will probably have to compromise on arrangements for your children. Try to be flexible about the arrangements, it will be better for you and, more importantly, much better for your children if you are not fighting over every single issue.
It helps to keep lines of communication open in the negotiation phase, as well as after you have resolved children’s issues. There are many decisions to be made about your children’s future, in almost all circumstances you will have to consult each other about them and reach an agreement.
If your children’s matters end up with lawyers or in the Family Courts, keep a sense of perspective on what is happening. It’s pointless spending $2,500 on legal bills for an argument over who should be washing and returning the children’s school clothes when you could buy a second set for one-tenth of the legal expense.
How the court sees the children’s situation may be quite different to what you would expect or how you would see it.
Once an agreement has been reached about arrangements for your children it is usually important for the agreement to be recorded appropriately.
There are two options, parenting plan or consent orders:
1. Parenting Plan
A Parenting Plan is designed to encourage parents to reach an informal agreement between themselves about matters concerning their children. A Parenting Plan is an agreement that:
- Is in writing; and
- Is or was made between the [parents of a child; and
- Is signed by the parents of a child; and
- Is dated; and
- Deals with a matter or matters such as who the child or children will live with, the time a child is to spend with another person or other persons, the allocation of parental responsibility for a child and the communication a child is to have with another person or other persons.
- The difficulty with a Parenting Plan is that it is an informal agreement between parties that IS NOT approved by a Court and IS NOT legally enforceable. That is, there is no penalty for breaching the agreement. Therefore, Parenting Plans may only be appropriate in very few cases and it is generally advisable to obtain a Consent Order.
2. Consent Orders
Consent Orders can be made at any time by the Court when proceedings are on foot between parties. They are usually made in one of two circumstances:
- As a result of filing an Application for Consent Orders without disputed proceedings, or
- At any stage during disputed proceedings commenced by one of the parties.
Application for Consent Orders
If you and your ex-partner are able to reach an agreement about children and/or property distribution (with or without legal assistance), you can file (lodge) that agreement through a process known as an Application for Consent Orders. You can do this yourself, as explained in the following pages. Neither party has to attend court and you simply need to file the document with the Court Registry.
The Court will then review the orders that you are seeking and, in relation to financial and property matters, satisfy itself that the terms of the agreement are ‘fair and reasonable’ and otherwise appropriate. In other words, the orders will have to comply with the requirements of the Family Law Act.
If you have complied with the legal requirements in preparing the forms and the Court is satisfied with the terms proposed, it will issue final Consent orders. These amount to a legally binding contract between you and your ex-partner that is enforceable in the Court if either party fails to comply with the terms.
Consent Orders during court proceedings
After you have commenced proceedings in court, it is still possible to settle any (or all) of the disputed issues by asking the Court to make Consent orders in whatever terms you agree.
At any stage of proceedings in court, you still have this opportunity to get things finished.
If you are seeking to finalise all of the disputed issues, the Court will again want to satisfy itself that the terms are fair and reasonable before issuing Final orders and concluding the court process.