How will your children be looked after post-separation?

How will your children be looked after post-separation?

You’ve agreed how you’re going to look after your children, now what? We discuss the options available for documenting your agreed plan.

After separation, it’s common for you and your former partner to agree a workable arrangement for the care of your children.  How you document this agreement can have lasting consequences, so you need to choose wisely.

Documenting how your children will be cared for physically

Using an informal Parenting Plan

A Parenting Plan is an informal way for you to document your agreement about the physical care of your children.  You can also use a Parenting Plan to enter into an agreement with other parties (for example, grandparents).

A Parenting Plan is not confined to documenting who your children will be spending time with, and when.  It can also be used to document your broader objectives about how you wish to bring up your children, and how major decision are going to be made, i.e. by one or both parents, (or by some other party). Issues addressed in the plan may include who your children will interact with (including extended family), the nature of their healthcare, how they will be educated, and any religious component to their upbringing.  A Parenting Plan should be drafted in plain-language and be easy for all parties involved to understand.

While a Parenting Plan is not legally binding on parents, the existence and terms of a Parenting Plan will be taken into considered by the Court if the Court needs to intervene in a parenting dispute.  This means that if a dispute arises, you cannot rely directly on the Parenting Plan to enforce an outcome or decide the dispute, it will point the Court in the direction of what has previously been agreed.

Parenting Plans should be designed to be as flexible and realistic as possible. They are also not meant to be ‘set in stone’, in that you can always agree to set them aside, or replace the plan with a new one, should your circumstances change.

Using binding Consent Orders

The other option for documenting your agreement about the physical care of your children is in the form of legally binding ‘Consent Orders’.  Consent Orders contain a series of agreed rules or principles about how you will parent your children.  If the Court is satisfied the Consent Orders are in the best interests of your children, the orders will be ‘sealed’ by the Court and become a legally binding plan.

You will need to file the following documents with the Court to apply for Consent Orders:

  • A Consent Minute of Order: This outlines in detail the orders you are seeking;
  • An Application for Consent Orders: This is a Court form to be completed by both parents, outlining all the details about your children and the agreement you propose to enter into; and
  • An Annexure to the Proposed Consent Parenting Order: This is where you outline if there has been, or there is any risk of, family violence or abuse.

Once Consent Orders are sealed, you are able to seek court enforcement if one parent defaults on the terms. You can also make an application for a contravention order if disputes arise about how the terms are to be carried out.

Consent Orders are intended to be final and can only be set aside where there has been a substantial change in circumstances, or if there was a failure to disclose important information at the time the orders were made.  You are also able to enter into a Parenting Plan where you want to document new agreed terms, but are unable to have existing Consent Orders changed or set aside. If a dispute later breaks out, then the matter will be governed by the Consent Orders.

Documenting how your children will be maintained financially

The financial maintenance of your children can be dealt with without having to rely on the calculations of the Child Support Agency.  You are free to enter into a Child Support Agreement when your children are under 18 years of age and have not completed secondary schooling.

There are two types of Child Support Agreements: limited and binding.  We discuss these below.  Regardless of the type you choose, a Child Support Agreement must be registered with the Child Support Agency.

Limited Child Support Agreement

You can only enter into a Limited Child Support Agreement if there is a Child Support Assessment in place, and the amount payable under the agreement is equal to or more than the assessed amount per annum.  You don’t need legal advice prior to entering into a Limited Child Support Agreement.

The agreement can require a parent to make payments towards school fees and/or health insurance in lieu of cash payments, so long as that amount is quantifiable and equal to or more than the assessed amount.

A Limited Child Support Agreement can be terminated by a parent if a new Child Support Assessment is obtained and the amount to be paid has varied by more than 15% from the original assessment, or if you agree to terminate or replace the old agreement.

Binding Child Support Agreement

Alternatively, you can enter in a Binding Child Support Agreement on whatever terms you agree.  This means the amount payable may be equal to, more than, or less than the amount assessed by the Child Support Agency.  Each parent must obtain their own independent legal advice about the proposed agreement.

This type of agreement allows for greater flexibility as to how child support is payable.  For example, the agreement can provide for one parent to pay a ‘lump sum’ in satisfaction of their ongoing periodic payments.  Alternatively, it can provide that the transfer of real property meets a parent’s obligations.  It can also provide that the payment of school fees or other expenses is to be in lieu of cash payments.

There are limitations on terminating a Binding Child Support Agreement.  The agreement cannot be terminated unless:

  • The parents agree to terminate (which must be documented by a ‘Termination Agreement’) or the parents enter into a new Binding Child Support Agreement;
  • The agreement is set aside by the Court on application by a parent. An agreement can be set aside if it was not entered into correctly, there was inadequate financial disclosure by either of the parties, or due to some other factor that makes it unjust (e.g. fraudulent behaviour, duress and/or unconscionable conduct by one of the parents); or
  • Any other reason permitted by the agreement. For example, the agreement may contemplate that it terminates if there is a significant change in one parent’s income/earnings, if one of the parents dies, if the child dies, or if the child is no longer living in Australia.

We are able to assist you in formalising your parenting arrangements – and it is a good idea to do so. Call us on 1300 654 590 or email marie@andreyev.com.au. If all of our lawyers are busy and we are not able to take your call immediately, we promise to call you back well within 24 hours.