One of our Principal Lawyers, Daniel Dalli, discusses with Dads Online some of the issues that arise after separation or divorce. This podcast focuses on the difference between parenting plans and consent orders.
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The below is a transcript of the podcast for your viewing.
Intro: Hi everyone and welcome to Dads Online podcast. Tonight we have a special guest, Daniel Dalli, that’s going to be continuing on with some really interesting information around parenting and property agreements. Daniel is a family lawyer, and he’s a friend of dads online, and Daniel handles old family law matters and intervention orders. Welcome, Daniel.
Daniel: Hi, Peter. Thanks for having me tonight.
Peter: No problem. It’s good to have you here on a cold winter’s night. So parenting and property agreements, they’re definitely something that is two of the most asked questions that come through Dad’s Online from a lot of dads. Is it something that you also have a lot to do with?
Daniel: Yes. Look, it’s something that we do a lot of in family law, and there’s quite a lot of confusion around it when people separate. Well, the two big questions are, what time am I going to spend with my children? And what property am I going to get? How are we going to divide it?
Peter: Yes, absolutely. And I think that there’s a lot of couples that worry about, do I formalise these agreements or are they okay to be verbal? And I know that you have some really good information to guide some of our dads on that. A lot of couples don’t want to go to court. Is that a common question that you get [that] they want to try and stay out of court?
Daniel: Yes, It is something that’s popping up probably more frequently these days where parties or parents want to remain out of court. It’s never a pleasant experience going to court so it is something that we have to often consider and with different types of resolutions, avoiding court is always a great thing for everyone. It’s expensive, it’s stressful, and if it can be resolved outside of court, then it’s always preferable.
Peter: Yes. Okay. Makes sense. Well, as I mentioned, this is a series. Two series on the podcast, one for parenting and one for the property. So I guess somewhat we should do is probably get straight into it. I guess I had a question like, in the case that parents have been able to come to an agreement about how future co-parenting arrangements will look like for their child or their children, can they simply decide to follow the agreement — arrangements that they’ve both agreed to? Is that something they can do?
Daniel: Yes. So if the parents have decided that you’ll have care of the children on a week on week off basis, then they can follow that, and they can do that informally through a verbal agreement, or they can do it through a parenting plan. I mean, there are some risks involved with both of these particular options, but they can decide about or they can decide to operate in that way. Sometimes it’s beneficial for parties to operate like that because it allows them some flexibility. It allows them to preserve the relationship between the two of them.
Peter: Okay. You mentioned risks, which pricked my ears up so I’m just thinking before we move on to some of the risks that you’d be able to mention, can you tell us first what is a parenting plan?
Daniel: Yes. A parenting plan, it’s usually a written agreement. It can be informally drafted between the parties, and what it does is it sets out the arrangements in place with regard to a child or children of a relationship and a parenting plan might have information as to who arranges the changeover, who picks up the child from school. Now, a parenting plan doesn’t need the approval of the court. It doesn’t even need to be drafted by a lawyer. However, it is not legally enforceable and that moves on towards the discussion of risk.
Peter: Right. Okay. So you’ll probably tell us that parenting plans then should be formalized so that they’re legally enforceable. But are parenting plans better than a verbal agreement between parties?
Daniel: Yes. Look, in my opinion, I think they are. It provides a bit of certainty to the parties and some certainty is better than no certainty. Parents seeking to go down the path of a parenting plan should always meet together and write down the arrangements as opposed to relying on verbal agreements, which, you know, can lead to all sorts of issues, and I think there are many benefits to preparing a parenting plan, as it provides a schedule and a structure for the parents and the child or children, and it can help avoid any disagreements that will inevitably arise from time to time. I think it’s a sensible option.
Peter: Okay. So Daniel, for those considering drafting up a parenting plan, what arrangements should be considered and can a lawyer assist them in these situations?
Daniel: Firstly, to answer the second part of your question, a lawyer can assist even if it’s to have a discussion with one of the parents about what arrangements or the practicalities of any arrangements that they should consider when putting together a parenting plan or consent orders and that’s something we’ll speak about later. So a lawyer can assist in a minimal role or have a greater role to assist as well as parties being able to do it. Now, the other question you asked, what arrangements should be considered? Now the quick answer is there’s no hard and fast rule about it, as every child is going to have their own unique needs. There are some general items that should be discussed and should be given some thought by parents. Most obviously, who the child lives with. What time does the child spend with each parent? Is there a week on week off arrangement or each alternate week arrangement? Is there a midweek dinner for one of the parents? These arrangements can be up for debate or they can be agreed upon. Ideally, if a parenting plan can be put together by the parties, they’ll have come to an arrangement with regard to this. Most importantly, and something that is often overlooked is, how will decisions be made for the child and who will make them? For example, decisions about medical treatment? What school do they go? These are, — it’s an important area that parents really need to think about, as there will be many issues that arise that will need to be discussed, and it’s difficult when you’re sitting down drafting to anticipate what might pop up. So it’s important to have a broad view of what you should cover.
Peter: Okay. Now the other day, I had an email from a dad — some dads are driving like an hour each way or longer. They’re doing all the driving to pick up the children and then what they do is they drive them back to their mum’s house. Can that be in a parenting plan as well?
Daniel: Yes, of course. How the child will be picked up and dropped off is something important and while we’re discussing a parenting plan, if there is agreement about that, then great. If for instance, one of the parents says to the other, you’re going to be responsible for all the driving, then maybe further action needs to be taken, and what I mean by that is, if no agreement can be finally reached, it might be a matter that needs to go to court. But who picks up the children from soccer or dad’s house or karate; the list really goes on and it’s important to think practically how these arrangements might occur. For example, dad might find it difficult to drive to Altona to pick up Jack at 3:30 if he’s working in Preston until 5:30. When the child might see cousins, grandparents, auntie’s, that’s another thing that needs to be considered, so time with the extended family. Another issue that pops up that’s often overlooked is contact with the child. So you know, every child has a mobile phone or an iPad or a laptop so communication is made quite easy. But sometimes there needs to be some structure around this to help parents have good communication with their child, but also for the parents with the care of their child to be able to spend quality time with their child. For example, if mum or dad to calling the child every five minutes, it might be a tad disruptive course. And of course, the other little bit that needs to be considered is whether or not there are any special needs of the child. Is there any medication the child needs to take? Is there a child that needs special attention with their homework? This is what I mean by every child’s unique. For example, is there a particular activity Peter that one of your children used to do?
Peter: Yes. One of my children would have a part-time job, and it would require sometimes drop off and sometimes pick up, and depending on the night that my child is with me or they’re with their mum, there needs to be an agreement on who picks her up.
Daniel: That’s great. And no doubt, you would have had the issue of who washes the uniform from time?
Peter: Yes, exactly.
Daniel: So I mean, there are all these little bits and pieces that pop up that really need to be thought about. And the trick, I guess, is not to have a parenting plan that’s 30 pages long. It’s got to be something that is of reasonable length. Something you could pick up and have a read of and be like, “Okay, I can see I’ve got my daughter on this day. I’ll plan something then. I’ve got to take her to work on this day.” So I think it’s important to keep it concise, but also to cover the issues that need to. It’s really two contrasting requirements, but it’s a difficult exercise, but its one that’s is for the benefit of everyone I think.
Peter: Now you mentioned risk before. With regard to parenting plans, can you elaborate a little bit more about this? Tell us more about risk.
Daniel: Yes. And it’s a rather simple answer, Peter. Parenting plans, they’re not binding. And what I mean by that is if somebody chooses not to abide by the parenting plan, the other parent is very limited in the action they can take. A parent can decide not to abide by the parenting plan, and it puts the other party in a position where they need to perhaps consider legal advice, perhaps consider going to court to ask the court to have their time What I mean by it not being binding is that you can’t force someone to follow a parenting plan. You can’t compel someone to follow a parenting plan. And the issue of it being legally binding is that’s the biggest issue.
Peter: Even if a lawyer drafts — writes it up?
Daniel: Yes, that’s right. Even if a lawyer drafts up a parenting plan.
Peter: — And both sign it?
Daniel: — And both sign it.
Peter: Still it’s not binding?
Daniel: No. For example, I could draft up a parenting plan, and mum could have the kids every second week. And one day mum could decide that she’s not going to bring the kids every second week. She’s going to tell me that you only get every second weekend. With a parenting plan, I’m really limited as to what I can do because it’s not an order of the court. An order made by the court, it sets out the parenting arrangements of the child or children, and the court needs to approve it. At that point in time that a parenting order is made, there are consequences for a party that doesn’t comply with it. A parenting plan doesn’t have any consequences enforceable by law.
Peter: Okay. But quite often dad’s writing in and say that if a parent has not complied with an order, is this one of the reasons to formalise a parenting arrangement? So what are the consequences or remedies could a parent expect?
Daniel: So this follows on from that example I just gave. The leading argument to formalise a parenting arrangement is so that there is some recourse. A parenting plan is suitable to provide a guideline. However, the risk is that if a party doesn’t follow it, the whole process essentially needs to start again. For example, as I said before, if a mum were to decide not to let a dad see their child, the dad would need to go through the whole process of obtaining parenting orders. So basically you’re starting from square one again.
Peter: Yes, that’s right. So just a parenting plan is — because it’s not binding and if the mum — just probably I’m just getting it through my mind if the mum says for some reason or another, you’re not seeing the kids this weekend, there’s nothing — has no recourse. There is nothing he can do, but if it was on a parenting order —
Daniel: Yes, it’s a completely different story. So there’s a couple of consequences for breaching a court order. One is most simply the resumption of prior arrangements. So we go back to what actually was in the parenting order. There might be compensation for lost time. Let’s say mum or dad have missed out on a month worth of time with their children, then they’ll have that makeup time. Parenting arrangements can be varied. Meaning the parenting order can be varied if, for example, one of the parents aren’t facilitating or allowing a meaningful relationship between the other parent, and punishment can be a bit more severe than that although it’s rather rare. But the court has the power to issue fines and in serious cases imprisonment. The court has the power to do that but I’ve never personally seen it.
Peter: No, it’s more just “Hey, come on. Get back on track.”
Daniel: Yes, generally that is the course, and the application — So let’s say, for example, we’ve got parenting orders, and somebody was not complying with them, the application we would make the court is what’s called a contravention application. And that’s an application brought to the court basically saying to the court, somebody is not complying with their end of the bargain.
Peter: Okay. Wow. So I’m thinking about a lot of dads and mums too for that matter. They don’t want to go to court, but do you have to go to court to get a parenting order?
Daniel: They’re generally two ways to get a parenting order. The first is to file what we call an initiating application, and that’s what we most commonly know is going to court. So that’s when parents are often in conflict, and that’s when you’re asking the court to decide the matter for you. That’s the one we want to avoid. The one that we are interested in is what’s called consent orders. It’s when parties agree about parenting arrangements. It takes the form of an application. It can be prepared by a lawyer or it can be prepared by the actual parties, and it usually needs to have a set of accompanying orders. So this sets out exactly what is going to occur. It’s similar to the items that were discussed when forming a parenting plan. So that’s forwarded to the court for their consideration and their approval, and these applications are completed so the parties don’t have to go to court. If the court approves and the order is made, which means that the parenting arrangements are formalised. This is the ideal case. It means that parents don’t need to go through the stress of a court hearing, which as we know can cost thousands of dollars and it can create further tension and conflict between the parties, and it presents as another option. So to answer the bigger question that we’re discussing today is, can parties come to an agreement? Well yes, they can. They can do so by consent orders, parenting plan, there are just different varying levels of risk and recourse.
Peter: So we know that the easiest way to go forward is to obviously agree on initially your parenting plan. Then once you agree on all of the things that you’d like in the plan, and that can be through either self-research or guidance from someone like you on what should be in a plan. Because sometimes people just don’t know, and they can forget about Christmas holidays and school leave and things like that.
Daniel: That’s exactly right. And that’s something I see so often.
Peter: Okay. So they forget about things so it’s really nice to talk it through with you, and you would obviously have a definitive list of what you really should consider being important. So what does a parenting plan cost?
Daniel: It will obviously depend on the level of work done up to the point of meeting with a client. If a client were to come into my office, I haven’t started, tell me all the things I need to consider and draft it, it could range between, maybe $1,000 to $3,000. It may be a bit cheaper. What I think is best for people to do is have a good think about it beforehand. Maybe try and jot something down. If you’re proceeding by way of a parenting plan, obviously it means that you’ve got some agreement with the other parent. So if somebody were to come into my office, and they’ve got a good idea already, it might be less than $1,000.
Peter: Just depends on how much time.
Daniel: It may only be a couple hours’ worth of advice which is going to be less than $1,000. That way they can make sure that they’ve covered everything.
Peter: And if it’s amicable, because they are both agreeing, and at the moment, we’re just talking about a parenting plan. But if they’re both amicable, do you represent the mum and the dad?
Daniel: No. I mean, there are cases where we can. It depends on what role. For example, the Collaborative Law approach would — that’s when a lawyer says, “I’m going to assist the parties in doing so.” More often, what I do — my role is to act for one of the parties because I can’t give advice to both parties. After all, it’s a conflict of interest.
Peter: It makes perfect sense. So thanks for the cost roughly on a parenting plan. But what about the consent order? What does that cost?
Daniel: So consent orders are more expensive. Consent orders are probably within the range of say $3000 to $5000. There’s a bit more work that goes into them because there is an application that’s drafted and there are actual orders that are drafted as well. There is also a filing fee. Off memory, I think it’s around $160 and that’s payable to the court. So there is a huge difference because of a parenting plan and consent orders. Is one better than the other? I think so. But, I mean, that’s coming from my perspective, which is obviously going to be a bit skewed.
Peter: Yes, of course. But I think I’d always want a consent order because it’s more binding.
Daniel: I understand with clients, sometimes it is difficult to —
Peter: — Is it a cost thing?
Daniel: Sometimes it is. Financially, it’s a difficult hurdle to jump over.
Peter: Who pays it?
Daniel: Depends on the party that engaged the lawyer. So if you would engage me, then you would be up for those costs. If mum was to engage another lawyer and the other lawyer drafted it and you engage me to give you advice, it’s not going to be anywhere near that cost. Generally, the party that — And as to who has to engage a lawyer and be responsible for the costs? Well, there’s no answer for that. That depends on, I guess who’s more eager, and who’s driving?
Peter: So as much as it’s binding towards potentially the mum, but it’s also binding for the dad.
Daniel: Yes, that’s right. It sets out a clear structure and a clear path for both parties. And as much as it protects you, it protects mum as well.
Peter: Okay. Really interesting. Thanks so much, Daniel. While we’re talking about these things, what comes to mind sometimes is that it can bring up some thoughts with some dads out there around sadness and grief, and I just want to make sure that if Dads are going through a bit of a tough time at the moment, you don’t have to go through it alone. There are organisations that you can call and have a chat to. One is men’s line, you can give them a call on 1300 7899 78 or even Lifeline you can call them on 13 1114. So use those if you are struggling, but this information Daniel is vital, it’s important for all dads who are going through separation to understand the benefits just in this versus a parenting plan or a consent order. I learned something tonight. I hope our listeners did. So is there anything else you wanted to add before we call this an episode and we can look forward to getting on to talking about property in the next episode? Is there anything you’d like to add?
Daniel: I just hope that the listeners take from this the options that are available to them, with regard to parenting arrangements after separation. There are a number of options and whilst the lawyer might come in — whilst I might come in and I’ll spruik consent orders for as long as I breathe, it’s not the only option. There are some less preferable options. But consent orders aren’t always the option that everyone prefers to go with. So I hope that the listeners have also had a good think about what some of the arrangements that they need to consider when putting together a parenting plan or anything similar to that.
Peter: Yes. There’s quite — From my experience, there is a lot to think about when it comes to what should be included in a parenting plan.
Daniel: The list could be huge.
Peter: That’s right. But then like I think you also alluded to before. You can have so much in there that you can’t breathe. You just have to spend some time, think about what a parenting plan might look like for you, what you think is fair to both parties, write it up, bring it in, you’ll have a look at it, spend some time with whoever the person is and give some guidance and then adjust it —
Daniel: They can make a decision on that.
Peter: They can make a decision after that.
Daniel: That’s right. That is what’s important.
Peter: Okay. That’s great. And I know that you’re very generous with your time and it is certainly — I’d want you in my corner. So I thank you for your time. And I just want to let the listeners know that you are contactable on a mobile phone?
Outro: And Daniel’s details, both email and mobile phone will be in the podcast notes. But if you happen to have a pen there, Daniel’s mobile is 0423729686 and he’s happy to take a call and see how he can help. But anyway, thank you, Daniel, and until the next episode. You take care.
If you would like to advice about your family law matter and would like to be informed regarding your options for finalising your parenting matters (including options to settle out of Court), contact us on 8391 8411 to book a free 30-minute consultation with us to discuss what steps you should take next.