Out of Court resolution of parenting issues after separation

Dealing with children’s living and care arrangements by agreement

There are a few myths about the Australian Family Court system that may not stand up to a reality test. Unfortunately, the protracted delay for children’s matters is not a myth but a reality.

According to a recent article in the Sydney Morning Herald (7 November, 2014) “Court gridlock leaves families waiting three years for child custody to be resolved”. 

Unfortunately, few parents who have attempted to resolve their parenting disputes through the Court system will disagree, including many of our clients.

It seems that this problem is not going to disappear any time soon and may even become worse, partly because of serious issues with the funding of the Federal Circuit Court and a pending retirement of 12 of its judges over the next 12 months.

To make it clear to our readers, the Federal Circuit Court deals with family law issues alongside the Family Court of Australia and together, those two Courts are referred to as ‘Family Law Courts’.

We have been warning our Family law clients that it is likely to take them up to 2 years to get to trial (the event where the final decision in respect of their matter will be made by a Judge). If the issues with court system are not resolved in the near future, the waiting time may be increased to up to 3 years.

In light of this, we have been encouraging our clients to opt for an obvious alternative in their parenting disputes – that is, to attempt to reach an agreement with the other party without going to Court. The parties’ agreement can then be documented in either one of two ways, namely:-

  1. By making a parenting plan; or
  2. By agreeing to Consent Orders which are then filed in Court for approval (in which case the parties do not have to commence defended legal proceedings in Court).

Both a parenting plan and Consent Orders are designed to deal with various issues relating to parenting, such as for example:-

  1. whether the parents shall have equal shared parental responsibility or, if not, what aspects of care each of them will be responsible for after separation;
  2. whether the children will spend equal time with each parent or, if not, which parent the children will live with and how much time they will spend with the other parent;
  3. whether the children will spend any time with grandparents or other relatives;
  4. what communication the children will have with each parent when they are not in their care;
  5. any other aspects of the care, welfare and development of the children, including but not limited to their schooling, medical treatment, travel, place of residence, religion and culture.

What then is the difference between a parenting plan and Consent Orders?

In a nut-shell, a parenting plan works as follows:-

  1. Either through negotiations directly between themselves or as a result of attending mediation, the parties can have a written agreement drawn up and signed by them that sets out the parenting arrangements for the children;
  2. It is most common that the terms of the parenting plan are drafted by the mediator or a solicitor;
  3. There is no involvement of any kind by the Court;
  4. A parenting plan is a practical solution for parties who have an amicable relationship after separation but who need to have a set of guidelines as to specific arrangements for their children that both will follow;
  5. However, if one of the parties reneges on the agreement documented in a parenting plan, the other party cannot take the first party to Court to enforce the agreement as parenting plans are not enforceable in Court.

If the parties want an enforceable agreement, they may need to consider entering into Consent Orders. The basic facts to note about Consent Orders are as follows:-

  1. It is a written agreement about the same aspects of the children’s care as a parenting plan, however, it must be approved by the Court;
  2. Parties can apply for Consent Orders to be made without going to Court, however, the Court must be satisfied that the Orders the parties are seeking are in the best interests of the child/children;
  3. Legally, Consent Orders have the same force and effect as Orders made by the Court following defended legal proceedings;
  4. It is highly recommended that the parties obtain legal advice about the effect of any proposed Consent Orders;
  5. Orders made by consent can be changed by a subsequent agreement, documented either by a new set of Consent Orders or by a subsequent parenting plan;
  6. If the parties wish to apply for Consent Orders, they still need to fill out an Application for Consent Orders and set out the terms of their agreement in the formal Consent Orders;
  7. The Application and the Consent Orders will then need to be filed with the appropriate Family Court for approval;
  8. There is a filing fee payable for the filing of Consent Orders, which is indexed annually but is currently $155.00. This is a Court fee and does not include any work by the solicitor for the negotiation and preparation of Consent Orders;
  9. Once the Consent Orders are approved and sealed by the Court they are enforceable in Court like any other Orders.

If parties wish to resolve their property issues at the same time as their parenting issues, they can include both into one set of Consent Orders.

With regard to the financial support of children, it is to be noted that most of the issues relating to child support are dealt with by the Child Support Agency. The parties can, however, reach an agreement with respect to various aspects of child support.

Such an agreement can be documented in a Binding Child Support Agreement which can either provide for periodic payments of child support or non-periodic payments, such as school fees, medical fees, and children’s various curricular activities (e.g. sports, dance, arts). It is a legal requirement that for such an agreement to be binding and enforceable, each party should obtain independent legal advice, confirmed by a certificate from their own solicitor.

We recommend that you come to our first free consultation to obtain advice before considering any of the options discussed in this article. 

Please do not hesitate to contact Julia Ejelovitch at Brazel Moore Lawyers on (02) 4324 7699 for more information.