Co-parenting agreements - what are the options?
Separated couples who have children under 18 years of age can reach a co-parenting agreement through a number of different pathways.
Co-parenting agreements will typically cover things like:
Living arrangements for the children, and the time they spend with each parent
Decision-making responsibilities (e.g. education, health, religion)
Communication between parents and the children
Travel and holiday arrangements
How disputes or changes will be handled
Here are the main options available for reaching a co-parenting agreement:
1. Informal Agreement Between Parents
What it is: A verbal or written agreement made directly between the parents.
Process: You talk things through and agree on arrangements yourselves.
Pros: Flexible and easy to change, free, can be fast, and avoid conflict.
Cons: Not legally enforceable, and not suitable in some family situations (e.g. where there is family violence, lack of communication, or high conflict). Both parents must be able to reach an agreement which is not always possible.
2. Parenting Plan
What it is: A written agreement signed and dated by both parents, made voluntarily and in the best interests of the child. A parenting plan will be structured and detailed.
Process: parents can discuss and agree on the arrangements, prepare the plan themselves and sign it. Often, parents will participate in a private family dispute resolution (FDR) session first, and once an agreement is reached, a parenting plan will be prepared and signed and dated by both parents.
Pros: provides clarity and structure, easy to change, and may be considered by the Court in future proceedings.
Cons: Not legally enforceable if one parent doesn't follow it. Both parents must be able to reach an agreement and be willing to enter into the Parenting Plan.
3. Consent Orders
What it is: A legally binding agreement approved by the Court.
Process: the parties reach an agreement (either directly, through mediation, or negotiation through their lawyers), and an Application for Consent Orders and draft Consent Order is prepared, signed by both parties and lodged with the Court. The Court reviews and approves the Orders if they are determined to be in the best interests of the child.
Pros: Legally enforceable, gives certainty to reduce confusion and conflict, and made by agreement avoiding a lengthy Court dispute.
Cons: More costly than a parenting plan, takes more time to prepare than a parenting plan (and usually one or both parties may need legal advice to have the documents prepared), and less flexibility as once a Court Order is made, to change the agreement the parents must agree or obtain Court approval (which may be difficult). Both parents must be able to reach an agreement and be willing to enter into the Consent Orders.
4. Family Dispute Resolution (FDR) (when an agreement hasn’t yet been reached)
What it is: a process where the parties will try resolve their dispute with the assistance of a qualified family dispute resolution practitioner (e.g. Relationships Australia, Family Relationships Centre, or a private FDR Practitioner).
Process: the parties (or one of them) book an FDR session, attend FDR with the FDR practitioner, and try reach an agreement. If an agreement is reached, the parties may enter into a parenting plan or then have the agreement converted into Consent Orders.
Pros: Can help resolve conflict, more affordable than court, often required before Court proceedings are commenced.
Cons: May not work if one party is unwilling or if there are safety concerns. Both parents must be willing to participate in FDR, and it is optional, not compulsory, for parties to attend.
5. Private negotiations, usually through lawyers
What it is: if the parties can’t reach an agreement between themsleves, and FDR was not successful, negotiations can continue usually with one party or both parties engaging a lawyer to represent them.
Process: the parties will attempt to reach an agreement by ongoing negotiations, or possibly by attending a formal mediation with their lawyers present. If an agreement can be reached, the parties will then sign an Application for Consent Order and proposed Consent Order which is then filed in the Court, and those Orders will be made if they are in the best interests of the child.
Pros: If an agreement can be reached: a Consent Order will usually be prepared so that the parties have entered a legally binding agreement, to provide certainty, reduce confusion and minimise future conflict. The costs of negotiation through solicitors to reach private Consent Orders will be far less than the costs of filing an Application for parenting orders in a dispute.
Cons: can take several months to reach an agreement, each party may incur legal and other costs during their negotiations (e.g. mediator’s costs), and there is no guarantee that an agreement can be reached. May not work if one party will not negotiate, or if there are safety or risk concerns.
5. Court Application for Parenting Orders (dispute)
What it is: when no agreement can be reached, or if it is not appropriate for the parties to negotiate (e.g. there are safety or risk concerns), one party files an Application in the Court for parenting orders to be made.
Process: the parties must first have attempted FDR (unless they are exempt from participating in FDR e.g. safety or risk issues), and then one party gives notice and files an application in the Federal Circuit and Family Court of Australia to apply for parenting orders to be made. The parties will then be required to participate in the Court process for a final Order to be made by the Court based on what is in the child’s best interests.
Pros: the child’s interests are prioritised - the Court will make decisions based on the child’s best interests. A final Court Order is legally binding and can be enforced, and will provide certainty and structure (helpful in high-conflict of complex situations where cooperation or communication is poor). Court Orders can also be protective as the Court can make Orders to protect children in high-risk situations. There will be a final resolution - bringing a clear end to the dispute.
Cons: Expensive (legal fees, expert reports and court costs will add up), time-consuming (it will take months and sometimes years), and the process is emotionally draining and stressful on parents and children. Litigation can also deepen the conflict - which may make it harder to co-parent in the future. And the parties will lose control: the Judge will make the final decision which may not reflect what either parent wants.
What works for one co-parenting family will not always necessarily work for another. The best pathway for reaching a co-parenting agreement will always depend on the family situation, the level of conflict, and on the parents themselves.