Children's Care Arrangements Following Separation

Following a separation, parents do not have to go to court about the care arrangements for their children. As a matter of principle we encourage our clients to reach an agreement if possible without the need to resort to the Family Law courts. One advantage in reaching an agreement is that the legal fees will be much less than otherwise — that is not to say a person should reach agreement unreasonably.

Parents who are able to reach an agreement regarding care arrangements have two ways to formalise it: a parenting plan, or consent orders approved by a court.

Parenting Plan

A parenting plan is a written agreement made between the parents of a child, signed and dated by both, setting out parenting arrangements and dealing with matters in regards to the child's care. Because it is worked out and agreed jointly, you and your former partner do not need to go to court, and a parenting plan can also deal with child support payments.

However, a parenting plan is not a legally enforceable agreement. Parents who elect to enter into one are often those without issues regarding trust, reliability, or dishonesty regarding the other parent — if there are real and serious issues between the parties, a parenting plan may not be ideal. Put another way, parenting plans are very useful where parents can cooperate and agree about the care arrangements for the child.

Consent Orders

The second option is to ask the Court to make Consent Orders approving the terms of the agreement between the parents — by far the more common way for parents to formalise care arrangements. Consent Orders can only deal with the care arrangements for children and cannot deal with child support for the child concerned.

Consent Orders can deal with: whether the parents have equal shared parental responsibility or a specified division of it; with whom the child lives; whether the children spend equal, substantial or significant time with each parent, including specific details of how that time is spent; special days such as Christmas, Easter, birthdays, and Mother's and Father's Day; time spent with a grandparent or other relative; communication a child will have with another parent or person; the form of consultation required between people who share parental responsibility; and any aspect of the child's care, welfare and development, including education, health, religion, cultural aspects and travel arrangements.

It is important to note that Consent Orders are enforceable by the Court. This is because they are filed in the Family Court and become an Order of the Court — if a parent fails to comply without the consent of the other parent, it is possible to ask the Court to enforce the Order. In cases where there is a risk that one parent will not return a child to the other after spending time together, the other party will find this beneficial.