How do I record an agreement reached about children?
There are three ways to reach an agreement about living arrangements for children:
- An informal agreement between parents (orally or in writing);
- A parenting plan,
- A consent order.
Provided that a document is signed by both parents, dated, is entered into free of threat, duress or coercion (and relates to parenting arrangements) it is a parenting plan.
A consent order is one made by a Court on application from both parents. No appearance before the Court is required. Once approved by the Court, the order will have the same effect as if it were made by a Judge after a trial.
The differences between a consent order and a parenting plan are:
- A consent order is an order between the parties that must be registered and considered by a Registrar or Judge of the Family Court before it is enforceable;
- The Registrar must assess whether an order is in the child or children’s best interests. If the order does not then the order will not be approved by the Court;
- A parenting plan is not required to be registered in the Court,
- A parenting plan is not enforceable. It will be considered as evidence that a Court must have regard to in making a parenting order.
A parenting plan is most appropriate where:
- There is a likelihood of significant changes in arrangements, or
- It is unlikely that any arrangement will need to be enforceed by a Court.
For the process involved in obtain a consent order, read our parenting agreements brochure:
How does a Court determine Parenting disputes?
A Family Law Court has the power to make a Parenting Order. A Parenting Order includes orders about:
- Living arrangements for a child.
- Time spent with a parent or other significant persons.
- Parental Responsibility and the form of consultation to exercise parental responsibility.
- Any specific orders in relation to the conduct of the parents.
A child’s best interests are the paramount consideration in making a parenting order. In working out a child’s best interests, there are primary considerations and additional considerations.
The primary considerations are:
- The benefit to the child of having a meaningful relationship with both of the child’s parents.
- The need to protect the child from physical or psychological harm and from being subjected or exposed to abuse, neglect or family violence.
The additional considerations include:
- Significant relationships;
- Capacity to parent;
- Views (or wishes) expressed by a child,
- Parental capacity;
- Attitudes towards parental responsibility;
- Facilitation of the child’s relationship with the other parent.
A Court may make an order for a child to spend equal time, or substantial and significant time, with both of the child’s parents. A Court will not need to consider equal time or similar arrangements if there is family violence or abuse.
Before making an order for equal time or substantial and significant time, a Court must find that the arrangements are ‘reasonably practicable’. Arrangements that could be reasonably practicable, or should be reasonably practicable, do not meet this test.
Working out whether arrangements are ‘reasonably practicable’ depends a number of matters, including:
- How far the parents live from each other.
- The parent’s current and future capacity to implement an arrangement for the child spending equal (substantial or significant) time with both parents.
- The parent’s capacity to communicate.
- The impact such an arrangement would have on the child.
There is no presumption that a child should spend equal time with each of the parents.
Other matters relevant to whether or not an equal time order is appropriate might include: Consistency of parenting styles;
- Similar parental ambitions;
- The child’s personality and ability to transition between households,
- Mutual parental respect.
We can help with advice about how you can reach agreement about parenting arrangements, the ways of recording agreements, and your options. Contact us for assistance.