Is court needed for parenting agreements? As usual with questions of law, it is the standard answer of ‘it depends’. But put simply, the answer is ‘no’ in terms of strict necessity.
Australia’s use of non-adversarial dispute resolution for children’s matters has been trending for decades because of its preservation of familial relationships, its timeliness and cost efficiency. However, outside of court procedures are non-binding, and whilst influential in the court’s consideration of the child’s best interests, they are not enforceable. Your situation may need court intervention sooner rather than later particularly if there are risk factors such as family violence, drug abuse or mental health issues.
Out of court methods should be used where there is equality in bargaining power, and the preservation of parental relationships is valued by both parties. If your situation is cooperative, involves equality in bargaining power between parties and does not involve risk, out of court methods are often appropriate.
Compulsory family dispute resolution, for this reason, was made mandatory on 1 July 2007. The law requires parties to children’s matters to make a genuine effort to resolve their matters out of court. This expressly recognises the detriment litigation can have on children, and the importance of preserving parental relationships if possible.
Court processes are time consuming, which can negatively impact families who are likely to be undergoing emotional tolls. They can also be expensive, and money spent on legal fees could be better applied to other expenses.
If your situation does involve family violence, or other risk aspects, Court processes are often better placed to assist, at least at first instance. In some cases, such as family violence, mental health issues or urgent circumstances, parties will be excused from participating in the compulsory dispute resolution requirements.
So, what should you do?
Out of Court dispute resolution is often the more cost-effective and timely method of dispute resolution and can support the post-separation parenting relationship. However, if your family situation involves family violence, or other risk factors, including if there is a significant imbalance in bargaining power, the court process may be more appropriate to resolve your dispute.
If you are optimistic about reaching an agreement with the other party, we can even help you approach the court with an Application for Consent Orders.
If you need advice or have any questions please call our team of top family lawyers on 03 9793 7888.