divorce but united about the children
the non-court option
Separation is a difficult time for any family, especially when there are children involved. There are options when deciding the issues concerning children, whether the parents are co-operating without going to court or using enforceable arrangements.
Parents who agree about the arrangements for their children have the following options available:
- Informal agreements
- Where parents can make their own arrangements about the continued care of children after separation their agreement can be informal, and there is no requirement to have this agreement in writing. These agreements are not enforceable.
The family law system encourages parents to reach informal agreement buy entering into a parenting plan. What a parenting plan contains and its requirements may differ if you are within the jurisdiction of Western Australia, otherwise generally parenting plans will fall under the Federal Family Law Act 1975.
A parenting plan is an agreements between parents of a child that:
- is in writing;
- is signed and dated by the parties;
- deals with parental responsibility, with whom the child lives, spends time and communicates, maintenance and other issues.
A parenting plan is invalid if it was made under threat, duress or coercion.
Parents should sign parenting plans only after careful consideration, and it is recommended to speak with a legal adviser. The foundation of a parenting plan is to follow the 'best interests of the child'. Parenting plans are not enforceable, and there is no provision for registering a plan with the court. However, parenting plans can override an existing court order about children made after 1 July 2006. The existence of a parenting plan will able be taken into account if the matter goes to court later.
Parents may realise there are some problems negotiating about the care of the children. Parents wishing to make an application to the court for parenting orders will be required to attempt family dispute resolution first. Victims of family violence or abuse will not need to approach a family dispute resolution.
Parents who need enforceable arrangements about their children need court orders. These can be by consent, or made by the court after a contested hearing.
The paramount consideration in making orders about children is the best interest of the child. The court will take into account the relevant primary and additional considerations as listed in the Family Law Act.
The child's own view is also considered, but depends on the age and maturity level of the child. Each parent's own behaviour is always taken into consideration by the court, such as refusal to pay child support, family violence, and practice of regular religion
The court can make orders that deal with:
- where the child lives;
- with whom they spend time;
- the allocation of parental responsibility;
- how parents should communicate with each other over major long-term issues;
- communication the child is to have with the other parent, by telephone or by email;
- other aspects of the child's welfare, care and development.
Disclaimer : This article provides basic information only and is not a substitute for a professional or legal advice. It is prudent to obtain legal advice from a family lawyer.