Consent Orders – Some Common Pitfalls (Part 2)
Our earlier Blog, DIY Consent Orders – Can it be Done?, dealt with Consent Orders generally, what they are and the process involved in obtaining a Consent Order to formalise an agreement.
The purpose of this Blog is to bring to light some of the common pitfalls that we see as Family Lawyers when reviewing Consent Orders prepared by other Family Lawyers or Client’s themselves, with a particular focus on parenting matters. You can read Part 1 of the Common pitfalls for property Consent Orders by clicking here.
When reviewing a Consent Order with regard to parenting matters, the Court must deem that the care and living arrangements for the Children are in their best interests and if they are not, the Court will not make such Orders.
Whilst it is hoped that parties will be able to co-parent effectively and focus on the best interests of their Children, having a business-like relationship together for this purpose, this does not always occur. For this reason, Consent Orders should contain as much detail as possible, so as to avoid any further discussions or negotiations between parents, which can be a cause for conflict. In saying that, the ultimate aim is that parents may effectively co-parent into the future and that the Consent Orders may be placed in a draw, such Orders providing a “fall-back position”, should there ever be a disagreement as to the arrangements. Such flexibility may be a pipe dream for some and it is for this reason that Orders should be detailed and capable of enforcement.
Some of the below issues are a list of the common pitfalls that we see in everyday practise, it is not an exhaustive list, but a selection of some of the most common mistakes made:
Holiday time and time on special days, such as Christmas
Be wary to include a provision which states that time on special days or holiday periods, or time generally, is to be as agreed between the parties, as failure to do so, can lead to arguments between parents and ultimately may lead to further stress and expense in the matter returning to Court. Be as specific as possible in the Orders ie – what day does time start and finish, what time does it start and finish, where is changeover going to take place, can another person facilitate changeover on behalf of the parent etc. Whilst such time may be varied by agreement, it is important that arrangements are clear and capable of enforcement. Although it may be that parties may be able to agree at a particular period of time, a common issue we see is that cooperation often wains once parents have new partners.
Provision for attendance at school events/extra-curricular activities
It is a good idea to have provision in the Order which provides that both parents are able to attend school events and extra-curricular activities as quite often there will be issues in this regard. Such provision is of particular importance where there is a Protection Order in place, as without such Consent Order allowing the attendance of the parent, that parent may be in breach of the Protection Order.
Should you be wishing to travel with the children in the future and you are agreeable for the children to travel with the other parent, the Orders should include provision for both parties to sign a Passport Application for the Children, otherwise, should the other parent not agree to such travel in the future, you will have to bring the matter before the Court. They should also be specific about who retains the Passports. It is usually the parent with whom the children live who retains the Passport. So each parent is fully informed, should a parent wish to travel overseas, the travelling parent should provide to the other parent a copy of the return airfare ticket for the children, an itinerary with details as to where the children will be staying whilst overseas and provision for the travelling parent to facilitate telephone time between the children and the other parent whilst overseas.
Provision for Child Support
The Court is unlikely to accept Consent Orders which provide for the payment by one party of child support or child maintenance, the reason being that the Child Support Agency is available to attend to such matters. The Court will only deal with such matters in extraordinary circumstances. Including such provisions in Consent Orders is likely to result in the Court requisitioning the Orders and increasing legal costs for all parties.
Should you need assistance in preparing Consent Orders to reflect the terms of your property settlement agreement, need advice on Consent Orders prepared by you, your former partner or their Solicitor, or wish to discuss your matter generally, please contact our Gold Coast Office for a free fifteen minute telephone chat with one of our Gold Coast Family Lawyers.