When parties separate and there are children of the relationship, one of the priority matters to deal with is to ensure that arrangements are put in place for the children of the relationship so that each parent can spend as much time as possible with their children with such arrangements taking into consideration each parent’s work commitments, schedules, distance from where the children will be residing and each child’s own needs and requirements.
An informal Parenting Plan can be entered into between parties setting out arrangements agreed upon by each party with respect to where the children may live and how they spend time with each parent. Such Parenting Plans can be varied by agreement between the parties. However, when an issue is raised which is disputed or one parent no longer agrees with part of the Parenting Plan, then if that issue cannot be resolved either between the parents or by a third party negotiating discussions to amend/vary the current Parenting Plan then, effectively, if the agreement isn’t being adhered to by both parties it is ineffective and the only recourse a party can then do is proceed to make an Application to the Court for parenting orders to be made.
If parties agree upon arrangements for the children, such arrangements can be formalised by way of Consent Orders which are then filed and sealed in the Family Court. The Orders do allow for amendments/changes to the terms of the Orders and, failing agreement, the parties then fall back to the original terms of arrangements set out in the Orders and can, if necessary, then arrange for formal mediation to take place between the parties and a mediator to negotiate any and all issues causing the dispute. If mediation fails, then a party is able to make an Application to the Court to vary the terms of the current Orders and put to the Court the reasons why such variations or amendments is beneficial to the children.
If a parent breaches a term of the Order (such as not returning a child to the other parent as allowed for in the Order or failing to comply with the time frames or communication means as set out in the Orders) then the other parent may apply to the Court with respect to the contravention/s of the Order. If it is found by the Court to be a contravention then the offending parent may have to meet court costs and the legal costs incurred by the other parent if so ordered by the Court and the Court may direct the offending parent to either follow the terms of the Orders or may amend the Orders as may be requested by the applicant parent.
Every circumstance is different and every effort should be made by parents and their legal representatives to ensure that any Orders made by the Court are adhered to by all parties and should any terms need to be amended or varied because of changed circumstances of a parent or a child, then those terms should be discussed at an arranged mediation between the parents to resolve the issues for the best interests of the children.
Written by Sandie Chatterton, Principal Lawyer