PART 2 – Should I formalise parenting arrangements? 

Unlike financial/property matters, it is completely up to you and the other parent whether you decide to formalise and document arrangements for your children.

How amicable or acrimonious your relationship is with your former partner will typically determine whether you require Orders, a Parenting Plan, or simply a handshake type agreement.

Option 1: Consent Orders

Formalising your agreement by way of Consent Orders involves the preparation of three (3) documents:

  1. An Application for Consent Orders (“the Application”); and
  2. A Minute of Consent Orders (“the Minute”); and
  3. Annexure to Proposed Consent Parenting Order.

The Application requires you to input details relating to your child or children. These details include things like:

  • who they live with and spend time with;
  • where they go to school;
  • the level of financial support provided to the child or children by each parent; and
  • whether the child or children have any health or special needs.

The Minute is where you specifically set out the Orders that you would like the Court to make. For example:

  • An order that the children live with the Mother;
  • An order that the children spend time with the Father each alternate weekend from after school on Friday until the commencement of school on Monday and for one half of all school holiday periods.

You may also have Orders that dictate arrangements and procedures for things like:

  • special occasions (Christmas, birthdays, Mother’s Day and Father’s Day);
  • where changeover is to occur (for example, one parent will collect from the other parent’s residence);
  • informing the other parent of a medical or health issue suffered by a child or children; or
  • letting the other parent know that you have new contact details.

Often drafting the “Minute” will require the assistance of a lawyer as the drafting of Court Orders can be complex in parenting matters. It is usually worthwhile having a lawyer prepare or review the “Minute” to ensure that disputes are avoided down the track. An understanding of the difference between equal shared parental responsibility and sole parenting responsibility is also required.

Despite the above, the engagement of a lawyer is not a requirement in order to make an application for consent orders to the Court. The Family Court of Australia website has some useful information that may be of assistance, including a “proposed orders template”.

The Application and Minute are filed with the Family Court, with an accompanying cheque in the sum of $160 (click here to confirm the current fees). A Registrar of the Family Court reviews the documents and will stamp and seal the Orders only in circumstances where they consider the Orders sought are in the best interests of the children.

Although the Family Court is involved, neither party is required to attend Court or participate in a hearing. The Orders are made administratively.

Once the Orders are made, if one party does not comply with the terms of the Orders, the other parent can file what is called a Contravention Application.

Option 2: Parenting Plan

A Parenting Plan is an alternative to Consent Orders. A few key differences are as follows:

  1. A Parenting Plan is not stamped or considered by a Court.
  2. A Parenting Plan is an informal document that evidences the parties’ intentions at the time they reached the agreement. It mustinclude the names of the parties, the name of the child or children, and be dated and signed by each party.
  3. A Parenting Plan is not legally binding or enforceable by a Court.

Option 3: Informal Agreement

You may simply reach agreement with the other parent about an arrangement that you both think is in your child or children’s best interests.

The benefit of this is the flexibility afforded to you, your former spouse and your children. The downside is that one parent may have a “change of heart” and seek to unilaterally change the arrangement. We typically see this when one parent re-partners and introduces the children to his or her new partner.

If you initially choose this option and one parent later has a “change of heart” the option of initiating court proceedings with respect to parenting matters is still open to you. If considering this option we strongly recommend that you seek legal advice from a family lawyer first.

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