In many instances, when parents separate, they are able to reach an amicable agreement about their parenting arrangements. When parents agree verbally on the arrangement for their children, such informal agreements are not always recorded in writing and the parties have generally not had the benefit of obtaining legal advice about the appropriateness of the arrangement. Such agreements are not legally binding or enforceable (although they can be used as evidence of the "status quo", that is they can be used as evidence as to what has been the arrangement which can be considered when determining what the future arrangements will be). Sometimes informal arrangements need tweaking over time and conflict can arise at that point too. Even if you are able to reach an informal agreement, it is greatly beneficial to receive advice so that an enforceable and long-lasting agreement can be drafted.
An agreement can be turned into a Parenting Plan. This is a written agreement which stipulates that parenting arrangements. They usually include parental responsibility, with whom a child lives, with whom and when they spend time with and arrangements for special occasions. A Parenting Plan can be drafted out of Court. Unlike Court Orders, a party cannot be found to be in "breach" of a Parenting Plan. Although they aren’t strictly enforceable, if the matter did proceed to Court, the evidence before the Court would include, the arrangements provided for in the Parenting Plan.
When parties reach an agreement the agreement can be made into Court Orders, known as Consent Orders. A lawyer would turn an agreement reached between parties (with or without lawyers’ assistance) into the correct format and the written agreement is then submitted to the Court for approval. No Court hearing is required, instead the Orders are considered "in Chambers". If deemed to be in the children’s best interests by the Court, the Orders are made and become legally enforceable.
If parties are unable to reach an agreement for parenting arrangements between themselves, with the assistance of lawyers or through mediation, then an Application can be filed in the Federal Circuit Court or Family Law Court of Australia seeking parenting orders. The Application would detail the orders sought and once filed, it is served on the other party, whom then file responding documents. Before an Application can be filed, parties generally have to have attended to attempted to attend mediation or Family Dispute Resolution Conference. There are circumstances where this requirement is negated, such as in matters involving family violence and urgent matters. Once the Application is filed with the Court, the Court will set a date for the first hearing. There is a lot of scope during Court proceedings for matters to be negotiated without the need for the Judge to make the final decision.
At OFRM we have Bendigo and Central Victoria’s largest Family Law team, headed up by our 2 Accredited Family Law Specialists, Marika McMahon and Sam McGee. All our family lawyers are able to assist you with your parenting arrangements when you call 03 5445 1000.