Article written by Nardine Collier
Family Lawyer Cairns & Alice Springs
For a lot of families, a verbal agreement is fine. A verbal agreement will work if you are reasonably amicable, able to communicate, and trust each other. Also, if you are both prepared to have some flexibility in your arrangements.
There is no ‘law’ that says you must reduce your verbal agreement to writing, so if it is working for you, all good.
However, be aware that there are two disadvantages to a verbal agreement. The first is uncertainty, and misunderstanding as to what really was agreed. The second, and biggest problem is that if it all goes pear-shaped, a verbal agreement is not legally binding or enforceable.
Another option for parents is a parenting plan which is simply a written agreement as to arrangements for children. It is signed by both parents but not filed in court. A parenting plan at least gives some certainly as to arrangements, but again, it is not legally binding or enforceable (as it is not actually an order of the court). It is good evidence of what was agreed, and the court will try to honor the parenting plan if the arrangements are in the best interests of children.
The best written agreement is one that is made into consent orders that are filed with the court. You don’t need to go to court, you simply file the application and the Registrar of the Family Court will make the orders in chambers (without a court sitting) so long as he or she considers the proposal is in the best interest of your children.
A consent order is a court order, just as if you went to court and argued the case and the Judge made the order. A consent order is binding on parties and it can be enforced if necessary. It provides certainty for children, and for families.
If you want to amend a consent order, you may need to file a further application; although it is worth thinking about whether you really need to do so. If arrangements are changed by agreement, you are not in breach of the current orders, but you MUST get that agreement in writing. If the changes are substantial (such as a change of which parent the child lives with) then you should file a further application for consent orders.
Is it easy to do it yourself? For more information, the Family Court has a very helpful ‘kit’ that you can look at if you want to have a go filing it yourself. Go to www.familycourt.gov.au – application for consent orders. The Application itself is quite straightforward, but where people come unstuck is how to complete the actual orders themselves, for example as to parental responsibility, the actual arrangements themselves, and how to word all of these things. You won’t generally find any templates on the websites, and even if you do, you should take care using them without legal advice.
As always though, I recommend you get some legal advice about your agreement before you file it as there are some orders the court just won’t make (child support, for example) and also to make sure you have covered off on all the issues that might arise. These are court orders that are binding and enforceable and there can be severe penalties imposed for breaching court orders. You want to make sure you haven’t unintentionally, agreed to an order that might be a problem in the future.
At Collier Family Law we offer a service whereby you fill in as much of the paperwork as you can, we provide you with a template of suggested orders and then work with you to finalize them. With you doing as much of the paperwork as possible (rather than paying us to do so) you reduce your fees.