Discussing and reaching agreement on the parenting arrangements for your child or children is a difficult task within itself. You may have ideas in your mind of what you would like the arrangements to be, which may or may not be in line with the other parent’s views on what is best for the children.
If you are able to reach an agreement, whether it be between yourselves or at mediation or through negotiation with your lawyer, one of the questions you should ask yourself, is what you want done with the terms of the parenting agreement.
You may decide to see how the arrangements will play out for a school term or for a couple of months, just to make sure that the arrangements are practical and beneficial for the children’s relationship with you and their other parent. Alternatively, you may be concerned that the other parent may change their mind and fall-back on the agreement and want the arrangements formalised as soon as possible.
We have detailed some options available if you were wishing to formalise the parenting arrangements, whether it be through an informal written agreement called a Parenting Plan or through an Application for Consent Orders filed with the Family Court of Australia. Know more about the differences in the podcast here.
If you are concerned with the other party being non-compliant with the parenting arrangements, you may wish to consider formalising the parenting arrangements by way of an Application for Consent Orders. The Application does not require any party to attend the Family Court of Australia in person, as the agreement is all detailed ‘on the papers’. The documents will be prepared by one of our lawyers and then filed with the Court once signed by all parties (and their lawyer if they have one).
BUT before signing an Application for Consent Orders, you must consider whether the arrangements you have agreed to and outlined in the Application for Consent Orders are the arrangements you want in place until the child turns 18.
We must emphasise that the Orders you are seeking in the Application for Consent Orders cannot be easily changed. When filing an Application for Consent Orders with the Family Court of Australia, and the Court returns the sealed Orders, the Orders are intended to be legally binding and enforceable until the child turn 18.
If down the line, maybe after a couple of years the arrangements are not working, and you and the other parent cannot agree on changing the parenting arrangements as set out in the Orders, then you must file a new application with the Federal Circuit Court of Australia seeking parenting orders.
Before doing so, you must satisfy that you have complied with the ‘pre-action procedures’ as outlined by the Court, which is detailed in this article here.
You must also satisfy that there has been a significant change of circumstances which warrants a new Application to be filed with the Court relating to the parenting arrangements.
We emphasise the term ‘significant’ in the test, as you need to satisfy the Court that there have been material changes to either your circumstances, the other parent’s circumstances or even the children’s circumstances which warrants the new Application being heard by the Court. There must also be evidence of such significant change of circumstances.
Examples of what may be considered a significant change of circumstances include one parent choosing to relocate to a new city or country, or the children have matured and are voicing their opinion to you regarding the parenting arrangements.
The background to the requirement of this test, is to avoid ongoing litigation between the parents regarding the children. The Court presumes that the parents have considered all factors surrounding the parenting arrangements before signing off on the Application for Consent Orders, which include the children’s education, overseas holidays or interstate trips during the school holidays or school term and circumstances surrounding communication. This is to avoid ongoing dispute between the parents regarding the children.
If you are unsure on whether you should sign off on the Application for Consent Orders or if you have Final Parenting Orders in place which need to be changed, we encourage you to speak with one of our lawyers at either our Gold Coast or Brisbane offices. It is important that you seek legal advice before signing any Court documents to ensure you have are aware of the implications of signing the particular document.