VIC Family law - legality of changing arrangements by agreement

[GlassHalfFull]

Hi all,

I know that in practice, it is possible to have existing family court orders in place but to negotiate a temporary change to them due to unforeseen circumstances in daily life. For example, you might have every second weekend but agree with the other parent to switch these. But what I'm curious about is the actual legality of it. My understanding is that primarily, it's not an issue because if both parents agreed to the change, then neither parent is going to file a contravention of the orders and therefore the court is not going to be interested or involved in it.

But let's say one of the parents changed their mind and said "yes I previously agreed to change the weekend but now I've changed my mind and I want the weekend that the court orders state I should have." (effectively giving them 2 weekends in a row, or alternatively 2 weekends in a row off).

Would that parent legally be allowed to demand that it revert back to the court orders, or would the judge say that the agreement between parents essentially superseded the orders? What is the actual law as it relates to agreements to temporarily alter the arrangements which are dictated by the orders? Is there anything in the Family Law Act that allows it, or is it just assumed that parents will be reasonable?

 

[sammy01]

"by agreement" I can agree, then I can choose that I don't agree.
Look the reality is you're not gonna bother taking this back to court. So lesson here - Don't dance with the devil...
In my experience my ex was exceptional at stuffing me around. The solution don't bother.

so the question to 'what is the actual law' - There isn't one. OR maybe the person who has the kids in their care can choose to keep them and say na ni na na na na and there ain't much you can do about it.
Yep you got it right - assume reasonable. Don't know why they would assume reasonable. If the parents were reasonable they would not need court orders.

 

[GlassHalfFull]

"by agreement" I can agree, then I can choose that I don't agree.
Look the reality is you're not gonna bother taking this back to court. So lesson here - Don't dance with the devil...
In my experience my ex was exceptional at stuffing me around. The solution don't bother.

so the question to 'what is the actual law' - There isn't one. OR maybe the person who has the kids in their care can choose to keep them and say na ni na na na na and there ain't much you can do about it.
Yep you got it right - assume reasonable. Don't know why they would assume reasonable. If the parents were reasonable they would not need court orders.

So what you're saying (reading between the lines here) is that if you reach an agreement that differs from the court orders, either on a temporary basis or permanent, don't expect that your ex will keep to that agreement. But likewise, if you don't agree with it, you could just as easily say at any moment "I want us to go back to the court orders" and you'd be justified in doing so and even if the ex kicked and screamed because "we agreed", she wouldn't have a leg to stand on.

I get that. I guess what I was asking primarily is whether there is anything enshrined in the law that makes allowances for agreements between parents that conflict with the court orders. It sounds like there's not. Is the court going to be upset that you didn't follow the court orders though? I mean, my understanding is that a written agreement between parents isn't enforceable whereas a court order is, so would a judge be annoyed that you didn't adhere to the court order (even though it was because you and your ex agreed to it)? It's that aspect to it that has me a bit puzzled.

 

[Jake Matherson]

Courts want the parents to work together.

They allow us to enter into parenting plans by agreement that would overrule existing Orders.

"Unless a court orders otherwise, you and your former partner can agree to change a parenting order by entering into a parenting plan."

If you are entering into a new parenting plan each week and there is no routine or structure the court wont be happy. But if you are both co-operating and have a genuine need to alter the existing arrangements barring any child safety issues I don't see them caring.

If you agree on parenting arrangements - Family Court of Australia

 

[GlassHalfFull]

Courts want the parents to work together.

They allow us to enter into parenting plans by agreement that would overrule existing Orders.

"Unless a court orders otherwise, you and your former partner can agree to change a parenting order by entering into a parenting plan."

If you are entering into a new parenting plan each week and there is no routine or structure the court wont be happy. But if you are both co-operating and have a genuine need to alter the existing arrangements barring any child safety issues I don't see them caring.

If you agree on parenting arrangements - Family Court of Australia

Thanks Jake. So basically if we agree to any kind of temporary arrangement, it is important to specify clearly the boundaries (time, dates etc) of that agreement, lest they be misinterpreted as a permanent change of arrangements that would override the court orders? Can you agree to something on a trial basis and then later change your mind if it isn't working for you, and force the arrangement back to the court orders without actually having to GO back to court? In other words, can you agree and then, down the track, withdraw your agreement? Or do both parties have to agree for it to be changed back? (let's say it's working well for one parent but not the other and the other parent is not willing to agree to any further change)

 

[Atticus]

Strictly legally the short of it is... if there are valid, stamped parenting court orders in place, the terms of such remain in place until such time as the order ceases to operate (child turns 18), is varied or replaced by a new order, or a FORMAL parenting plan is put in place... By formal, that means, dated & signed by both parents... If one party then changes their mind again or circumstances change..... Bad luck, you have both agreed to a parenting plan the terms of which replace all or part of your original order... & it's NOT legally enforceable like the order was by the way, so BE CAREFUL before agreeing to a PP that replaces an order..

When parents receive a parenting order, they are provided with a prescribed brochure that says in part .... " just because they may agree to change the terms of an order, DOE'S NOT CHANGE THAT ORDER"

Parenting orders – obligations, consequences and who can help - Federal Circuit Court of Australia

 

[GlassHalfFull]

Thanks Atticus. Okay, I understand all of what you've just said but (and I guess I'm repeating myself, sorry if so)... if so, then I assume the following is also true:

1. IF we both decide to informally change our arrangement (by text message, for example) knowing that the court order still is valid and enforceable, then as long as neither of us is interested in filing a contravention, the practical effect is that the court won't care that we've done it, right? But if one of us is no longer happy with the informal arrangement that deviated from the court orders, then we are legally entitled to expect the court orders to be followed again because they have actually remained in effect the whole time, despite our mutual agreement to 'ignore' them for that duration?

2. But IF we do formalise it by creating a parenting plan document with date and signature of both parents, then essentially we have wiped from existence the order (or at least the part of the order that relates to the written agreement), but there can be no legal consequences for not following the parenting plan? The practical effect is that essentially we have no orders about that particular issue anymore and if either of us wishes to revert back to the original court order or even just not follow through with the parenting plan, we can legally do it and there's nothing the court or the other parent can do about it? That sounds horrible... It essentially allows either parent to do whatever they want with no consequences (at least as far as the orders were nullified by the plan)?

As an example again, if I had the children for one night every weekend and we agreed to swap them so I had Saturday night instead of Friday night, and we formalised it with a parenting plan, and then my ex decided that actually she wanted them 100% of the time and withheld them from me completely, then because the parenting plan replaced the order giving me Friday night, I would actually have zero legal recourse? I would have to think that the judge come down hard upon that though, even if legally speaking it was 'right'. Sounds like a theoretical cautionary tale not to ever agree to a formal parenting plan. There are no benefits, only drawbacks if they are unenforceable!?!

 

[Atticus]

1) Correct... No legal consequence for NOT complying with a court order can ever happen without a contravention being filed. So no contravention application, no problem.... Your defense would be the text messages that clearly indicated an agreement regarding terms. End of the day, judge would be pissed for wasting time & probably give you both a serve about agreement DOE'S NOT CHANGE ORDERS... That said, if there is clear evidence of an agreement via electronic communication for EG about a specific arrangement, then who in their right mind would then file a contravention accusing the other party of non compliance.

2) Correct... There may still be a parenting order, but if it or sections of it are altered by a later formal parenting plan, then the consequences of that are in effect, you have also removed certain avenues available to you regarding contravention/enforcement of that order, & as you know, PP's are not legally enforceable... in essence, it would be a battle over legal terms & technicalities.... If you searched, you may find cases like that

if I had the children for one night every weekend and we agreed to swap them so I had Saturday night instead of Friday night, and we formalized it with a parenting plan, and then my ex decided that actually she wanted them 100% of the time and withheld them from me completely, then because the parenting plan replaced the order giving me Friday night, I would actually have zero legal recourse?

That's an extreme case, & you would be best getting the opinion of a lawyer, but the way the act reads, the PP would have to basically state fairly clearly that the intent is to fully replace the terms of the order with the terms of the PP.... In either case, if a court has found that it's in a child's best interests to have contact with both, then assuming no change in those circumstances, it wouldn't be impressed with completely withholding all contact & appearing in front of a judge again...

It has to be remembered that parenting orders are for the benefit of the CHILD/REN... Not to manage two warring parents... The orders are there to compel both parents to allow the child the right to a meaningful relationship with BOTH parents, regardless of the parents feelings towards each other, or what convenient arrangements they may or may not agree to, in the vast majority of cases, without consulting the child. The orders are there for THEM

 

[Atticus]

Just for your interest.... Below is the actual section of the family law act that I was alluding to regarding a parenting plan made after parenting orders & the legal consequences of no longer being able to file a successful contravention/enforcement.. Couldn't find it when last posted

FAMILY LAW ACT 1975 - SECT 70NBB Effect of parenting plan

The foot note sums it up pretty well.... ' Note: An action that would otherwise contravene a parenting order may not be a contravention because of a subsequent inconsistent parenting plan. Whether this is the case or not depends on the terms of the parenting order (see section 64D).....'

So unless a parenting order specifically states that a subsequent parenting plan does not vary the current order (rare) then the above applies

 

[GlassHalfFull]

Thanks Atticus. Although I gave fictitious and far-fetched scenarios to try to understand how it works, in my case it's more a matter that my ex has asked (by text message) for a few minor variations to the orders (a change of time of pickup and drop-off and occasionally the day of the week I have the children), and I have agreed but stated clearly that I only agreed on a temporary basis for as long as it was satisfactory for me and the children, reserving my right to change it back to the court orders if I wish to. It sounds like since nothing was signed formally and I made it clear that the agreement to vary the dates and times specified in the orders was temporary, that I would be on safe ground in asking that we revert back to the orders.