Isn't it best for the kids if we just agree to agree?

Parents normally want what is best for their children. We are often asked by clients why the parents shouldn't continue with an informal arrangement, and agree to just ‘be reasonable’.

Parties who are getting divorced or ending a de facto relationship do not in reality, for the balance of their lives, behave in a reasonable manner towards each other. Family break up is very emotional, and in our experience human beings are not very good at behaving in a rational manner while they are emotional. If there are orders in place then it is less likely that the children will become part of any arguments.

The conflict between Mum and Dad can have a large impact on the children of the relationship, and reducing that conflict by entering into a binding agreement is more often than not beneficial for the children. It is also beneficial to children to know when they are seeing each parent, when they will be sleeping at each home, and to have a structured approach to these issues. They no longer have the certainty of having one home, they now have two homes. It is therefore important for children to know when they will be at each home and when they will see each parent. Flexibility is great but on the whole structure and certainty is best for children.


The Family Court actually says in a brochure available on their website (or by clicking on the button to the right) that—‘Good quality parenting’, that is parenting that provides structure, warmth, emotional support and positive reinforcement, has been found to reduce the impact of conflict. Hopefully once the parties have entered into a set of orders regarding the children they can focus on this sort of parenting.

The court brochure also states that a high proportion of relationships experience conflict for the first two or three years after separation. If you and the other parent are discussing things amicably at the moment, now is the time to enter into Orders.  If issues or conflicts arise between Mum and Dad in the future (for instance when someone repartners) then there is a structure in place and hopefully the children can continue to spend real and meaningful time with each parent, without the conflict between Mum and Dad interrupting that relationship.


What about a parenting plan?

A parenting plan is not an enforceable document.  This means that if one party refuses to hand back the children then the parent who is not seeing the children cannot enforce that parenting plan, they cannot call the Police or ask the Family Court to deal with the matter. They must instead start the matter at Court like any other new matter, by obtaining a family dispute resolution certificate and commencing Court proceedings.

This process takes some time and so they will be many months without seeing their children. In comparison the penalties for failing to comply with Court Orders are substantial. We find parents are far more likely to comply with Consent Orders because they know that they are enforceable.

The Family Court has a brochure about the process for enforcing, and penalties for not complying with parenting orders.  You can look at that brochure by clicking on the link to the right.



What if we let the children choose?

We are often asked by parents whether their children can choose which parent they live with. This is probably in most cases a genuine attempt to do what is in the children's’ best interests.

Pragmatically however, choosing between parents is a massive decision for children to make. The Family Court website states that you should not make the children choose between parents, they should be allowed to love both equally, and you should not involve the children in your argument with the other parent. Asking a child to choose the parent they will live with is of course including them in your argument regarding when and how the children will spend time with each parent. We actually have a longer article that includes more information about this issue of letting children choose, that you can read by clicking on the link to the left.

Need help?

If you are going through a family break down you should speak with Jacinta Watkins about your children and obtaining orders.  She is an experienced litigator who is not only more than qualified to understand and investigate your family law property matters, but she also understands that family breakdown is an emotional time.  She will try and make the process as manageable and easy to understand as possible.  She is also well versed in the risks and benefits to children of certain orders or situations, and ready to advise and assist you to either settle your custody disputes with your ex-spouse, or assist you to urgently litigate your matter if orders are needed to protect your children.