If you have separated from your spouse and there are children involved, it may be daunting to face the various legal options in relation to parenting arrangements.
Mia Chenoweth, from our Port Lincoln office, provides some answers to common questions that you may face when choosing between parenting orders and parenting plans.
My ex and I have agreed on parenting arrangements for the children, what now?
Well done! You have completed the hardest part.
Your way forward will largely depend on your relationship with your former spouse and whether you want the agreement to be legally enforceable.
Your options include a parenting plan, which is a written agreement signed by both parents, usually setting out who the children will live with, time spending arrangements with each parent, holiday arrangements and communication between the parents.
Alternatively, you and your former spouse may record your agreement in an Application for Consent Orders with the Federal Circuit and Family Court of Australia. Once accepted by the Court, you will then have parenting orders setting out topics including living with and time spending arrangements, handovers, holidays, special occasions, communication and dispute resolution. These topics are similar to those in parenting plan, however, they are usually more detailed and aim to cover a wider range of circumstances that parents may face when co-parenting their children.
My ex and I do not get on, and we struggle with our communication. Which option is better?
Having effective communication with your former spouse can be difficult, so you are not alone! You may also be experiencing conflict and safety issues, which is relevant to your legal options moving forward.
If this is the case, you may be best served with a parenting order as this is legally enforceable. If one parent is not complying with the order, they may then face legal consequences.
A parenting order will aim to cover the main decisions that you and your former spouse will face in relation to your children. Having these agreed arrangements set out in an enforceable parenting order will provide you with the best protection in avoiding conflict over these issues in the future.
A parenting order is final and binding until your children reach 18 years of age. The arrangements are therefore fixed in accordance with the terms of your parenting order.
I have a good relationship with my ex and we communicate well. Do I need a parenting order?
Not necessarily. A parenting plan may suit you best as it is easier to amend than a parenting order.
Children’s circumstances and needs inherently change over time. Flexible parenting arrangements can therefore be beneficial to adapt to these changes to better reflect the children’s best interests.
If you and your former spouse are able to co-parent in an amicable manner, you may be able to agree on alternative arrangements as time goes on. Flexibility may therefore be an advantageous outcome for you.
It is important to note that a parenting plan is not legally enforceable. This means that if one parent does not comply with the terms, there are no legal consequences. Some parents attempt a parenting plan in the first instance, however ultimately pursue a parenting order as they require a legally enforceable Court order.
What if we want to change our parenting agreement?
If you and your former spouse have signed a parenting plan, it is open to you to prepare and sign a fresh written agreement at any stage. Whilst it may not be legally enforceable, many parents find that having a written document which is signed by both parents to be sufficient in managing their parenting arrangements.
If you have a parenting order in force, it can be more difficult to amend the parenting arrangements. If you and your former spouse consent to the amended arrangements, you will need to file another Application for Consent Orders setting out the new parenting orders that you seek.
If you seek to change your parenting order without the consent of the other parent, your options are extremely limited. The Court only considers applications to reconsider a parenting order when there has been a significant change in circumstances and that it is in the best interests of the children to do so. The Court has a very high threshold for what is considered a significant change, such as a parent relocating a substantial distance away from the children or a major change to the health of the children or parents. It will not likely include a parent re-partnering or half-siblings being born, or a parent’s work roster changing.
Our children have their own views about parenting arrangements. Does this affect our parenting agreement?
Whilst children remain under the age of 18, their views are not entirely determinative in relation to parenting arrangements.
Weight can be given to the wishes of your children however it depends on their age, maturity, and level of understanding. There is no set age for when the Court will consider the views of your children as the most important factor to determine their care arrangements
If you have a parenting plan, you may agree with your former spouse to amend the agreement in accordance with the wishes of your children. The flexibility of a parenting plan is therefore beneficial in this circumstance.
If you have a parenting order, it will be difficult to alter your parenting order due to your children’s wishes without the consent of your former spouse. It is unlikely the Court will consider the views of your children as a standalone factor to meet the threshold of a significant change in circumstance requiring a change to the parenting order
Mellor Olsson recognises that each person has an individual set of circumstances in relation to their separation. Our lawyers can provide you with tailored family law advice and provide you with the best options to protect your interests.