Despite people having the best intentions about the parenting of their children when they split up with their husband/wife/partner, life continues to happen and good intentions don’t always go to plan. There are also situations where a child may have a primary care-giver, such as a grandparent, for many reasons and another party, such as the parent or other grandparent, may want to be able to have time with the child.
Scenario one: Brad and Jen have separated but on good terms. They have verbally agreed that their three children will live one week with Brad and one week with Jen, and they also have a verbal agreement about school holidays, birthdays, special events, holidays, education, sports and so on. They are both happy with this and they both stick to their word. They trust each other.
Scenario two: Jen is so busy that she starts to make changes to the agreement her and Brad have without telling him or just giving him little notice. For example, sometimes Brad has the kids for three weeks at a time, and then won’t see them for a month. Jen also decides to enrol the kids at a new school without consulting Brad.
How can either or both parents ensure that the other will ‘stick with the agreement’ and if one doesn’t what can the other do?
Broadly, there are two primary options, the parties can consider: A Parenting Plan or Consent Orders.
Parenting Plan: This is a written plan signed by both parties. It is very cheap and quick. It is not legally enforceable though, which means a Court cannot make a person comply or stick with the plan. It relies on the good faith of people to stick with it. They can be easy to change if both parties agree.
If Jen doesn’t stick with the plan, or decides to change it the without asking Brad, then Brad can file an Initiating Application with the Court. This essentially is asking the Court to make a decision about the children. The Court cannot make Jen comply with the parenting plan, and the Court is not obliged to make a decision in line with the parenting plan. Instead, it will consider all the facts of the matter (i.e consider both Jen and Brad’s point of view) and then make a decision, which is called on Order. The Court may in fact Order that the children live with Brad full-time and spend time with Jen on a weekend.
Consent Orders: There is an agreed plan that both parties agree to, however, an Application for Consent Orders is made to the Court. The Court will make an Order that is the “same” as what the parties agreed to, except because it is made by the Court, the Court can make people comply. People may be less likely to ignore an Order of the Court. Being an Order of the Court, it can be harder to make a change if one of the parties’ circumstances change.
In Jen and Brad’s scenario one, they could apply for the Consent Orders at this point where they both are amicable and agree. If Jen doesn’t comply as time goes on, as per scenario 2, the Court can Order that she does.
If a party does not comply with the Court Order, the Court can make further Orders and there are also penalties for not complying with a Court Order including fines, bonds and even imprisonment.
With a parenting plan, the Court is only involved if on party decides to make an application to the Court. The Court cannot make anybody comply with the parenting plan, and instead will make its own decision.