If you are a parent, it is almost certain that one of your first priorities when considering separation will be to ensure that your children are adequately cared for and provided for.
If you are applying for a divorce, the court must be satisfied with the arrangements that you have made for your children before a divorce will be granted. This doesn't necessarily require orders or a binding agreement to be in place.
If you don't want to formalise the arrangements for the care of your children you can opt for either a verbal agreement or draw up a parenting plan.
It is recommended that you go through the exercise of preparing a parenting plan as this will assist you in future if either of you are unsure on what the initial values or intentions were in terms of raising your children.
If you can reach agreement with the other parent and wish to formalise arrangements, you may enter into a legally binding agreement or apply for a parenting orders.
Orders and agreements for the arrangements for children deal with such things as:
who the child will live with
how much time the child will spend with each parent and with other people, such as grandparents
the allocation of parental responsibility
how the child will communicate with a parent they do not live with, or other people
any other aspect of the care, welfare or development of the child.
If a parenting order or binding agreement is made, every person who is subject to the order or agreement must comply with it.
If one person doesn't abide by the undertakings, the other party can apply to have them brought before the court to be dealt with.
What is a Consent Order (Parenting)?
A consent order is a written agreement between parents (or guardians) that is approved by a court and covers the living arrangements for children as well as arrangements or the provision of finances to meet their needs.
Consent orders have the same legal effect as if they had been made by a judicial officer after a court hearing.
The consent order should also include details such as how agreements may be amended in future, either by way of agreeing a parenting plan or by applying to the court for a formal amendment.
The Court must be satisfied that the orders you ask for are in the best interest of the child before they will seal your application for consent orders.
Applying for Parenting Orders
If you and your ex-partner can’t reach agreement, then you can start court proceedings to ask the court to make a decision for you.
You do this by filing an Initiating Application. You must accompany the application with a Section 60I FDR Certificate. Notice of the application is served on the other person and they are given the opportunity to also present their side of the story.
The magistrate may ask for input from expert witnesses such as psychologists and accredited family consultants.
Older children may be asked for their view on what they would prefer the living arrangements to be. An independent children's lawyer may be present to represent the voice of the child.
In applying the principles of the law, the court will not be swayed by what the each parent prefers or what has gone before, but will make a ruling in terms of what is considered to be in the best interests of the child.
The Court listens to the circumstances of the case and makes Parenting Orders.
Unless ordered otherwise, you and your ex-partner can agree to change a parenting order in the future by entering into a parenting plan.
For more information on the step by step process of applying for consent orders click here.
For more information about the process for applying for parenting orders from the court, click here.
Changing Parenting Orders
There are two ways to change Final Parenting Orders which are either in the form of Consent orders or Parenting Orders made by the court:
agree to the changes with the other parent (or guardian) affected by the order and make an application to the Court for Consent Orders to reflect the changes, or
Prepare a Parenting Plan with the other parent outlining the changes and setting out the new agreements. Both parties must sign and date the Parenting Plan.