Parenting Arrangements – The Benefits of Getting it in Writing
Separating parents often ask me the question, “Do I need to have anything in writing about the care arrangements for our children?” The answer to that question is “No” – there is no legal requirement for parents to formalise their parenting arrangements.
However, if the question is “Should I have something in writing about the care arrangements for our children”, then my response is a definitive “Yes”.
Where there are no formal parenting arrangements in place, there is a legal presumption that the parents equally share responsibility for their children. This means that if one parent collects the children from school or day care (contrary to the existing arrangements) and announces to the other parent that they intend to keep the children in their care, then that parent has not breached any law. The only remedy available to the other parent is to make an urgent application to the Court for parenting orders. Depending on whether the Court regards the situation as urgent, it may take weeks or even months before the first Court date rolls around. If the Court does not regard the matter as urgent, then the applying parent may be told that they need to attempt mediation with the other parent before they can even file their court documents.
The failure of the Court system to offer an immediate response to such situations has prompted some desperate parents to snatch the children back and withhold them from daycare or school for fear that other parent will again take them.
Obviously, this is a disastrous outcome for the children, who are caught in the middle of an ugly tug-of-war between their parents and are perhaps traumatized by a lengthy separation from their primary carer.
My advice to parents is to be proactive when it comes to sorting out post-separation parenting arrangements. Regardless of whether there is disagreement or conflict, attendance at mediation (also known as family dispute resolution) is recommended to allow parents to communicate clearly their expectations and concerns, and to (hopefully) reach an agreement about the parenting arrangements which can then be committed to writing.
How can parenting arrangements be formalised?
Any agreement in writing which is signed by both parents is called a Parenting Plan. A Parenting Plan is not a legally enforceable document, but it provides both parents with a clear guideline as to what is expected of each of them. In many cases, a Parenting Plan will be sufficient to eliminate uncertainties about the care arrangements.
In cases where an enforceable agreement is needed, then an order of the Family Law Courts is required. Orders can be obtained by an application to the Family Court of Australia for Consent Orders (where both parents are in agreement as to the orders they want the Court to make) or, if the parents require the intervention of the Court, then an Initiating Application will need to be filed in the Federal Circuit Court.
What sorts of issues can be dealt with in a Parenting Plan or Orders?
Whether the arrangements are documented by Parenting Plan or a Court order, the sorts of issues they can deal with include:
- How decisions are to be made about the “big” issues like education, religion, overseas travel, etc
- What time the children will spend with each of their parents
- When and where changeovers will take place
- How and when the children will communicate with each parent
- Arrangements for school holidays and special days such as birthdays, religious holidays, Mother’s Day and Father’s Day
- Travel arrangements if either parent wants to take the children interstate or overseas
- Authorities for day care centres, schools and medical practitioners to provide information about the children to each parent
- How the parents will communicate about the children
- Specific issues like exchange of clothing, physical discipline, drug and alcohol use by the parents or third parties and the like
- Procedure for the resolution of any future disputes
How can these arrangements be enforced?
Where there are Court orders in place, if a parent takes the children and refuses to return them to the other parent, then the other parent can seek an urgent Recovery order. For less serious breaches of a parenting order – such as obstruction of the other parent’s time or communication with a child – the parent may file a Contravention application in the Court.
Remedies for such breaches include things such as make up time for the parent who has been deprived of the children, orders for counselling, orders to pay the legal costs of the parent who had to bring the application, and in some extreme cases, community service or even imprisonment may be ordered. The intention of the penalties is to ensure future compliance with the orders.
Sharyn Wagner is a Family Law solicitor and Accredited Mediator/Family Dispute Resolution Practitioner, employed by Briese Lawyers.