Recently, Hollywood stars Olivia Wilde and Jason Sudeikis were thrown into the spotlight as their co-parenting arrangement hit a stalemate. When parents are unable to reach an agreement about their children, they often end up in Court, with a judge deciding what is in the children’s best interests, explains Attwood Marshall Lawyers Family Lawyer, Emily Edmonds.
Relationship breakdowns are never easy, but when children are involved, it can unsurprisingly heighten the emotions of all parties.
Recently, news reports surfaced in relation to Jason Sudeikis (Ted Lasso and Horrible Bosses) serving Olivia Wilde (who played ‘Thirteen’ in House) with custody papers relating to their two children. The custody battle was ignited when Olivia was served the legal papers on stage at a live event, which she took as an aggressive tactic.
The pair headed to Court to fight it out, with Olivia winning the battle and a judge declaring that the children’s home state would continue to be California, where Olivia currently resides.
With Olivia intending to move the children to London following the closing of school in 2023, there may be more disputes to come as the pair navigate their way through co-parenting.
The Co-Parenting Journey
Jason and Olivia commenced their relationship in 2011 and had two children together. The pair split in 2020, and reports suggest that they have been co-parenting effectively since that time with the children living between Los Angeles, London, and New York.
With Olivia intending to move to London with the children at the end of 2023, what was once a harmonious arrangement, has become more tense, with disputes arising in relation to where the children should permanently reside.
Jason wanted the children to live in New York, whilst Olivia maintains that the children’s residence should be in Los Angeles and London, as this is where they spend most of their time, and have done so over the last four years, having attended schools in both cities.
It took a judge to decide what was in the best interests of the children to resolve the matter.
Coming to an Agreement – How does the law apply in Australia?
In Australia, parties who have separated and are able to co-parent harmoniously can enter into a Parenting Plan, which sets out the agreement reached between them in relation to their children.
Parenting Plans allow greater flexibility for parents to set out their arrangements in a semi-formal way.
Despite being less formal, there are certain requirements that must be fulfilled including that the agreement must be made in writing and must be signed and dated by both parties. There is no provision to register a Parenting Plan in Court or with government authorities.
The most common issues that are stipulated in a Parenting Plan include:
- who the children will live with;
- when they will spend time with each parent;
- how often and by what method the children are to communicate with each parent;
- whether parental responsibility should be shared or allocated to one parent;
- if the children will spend time with other relatives, such as grandparents, aunts and uncles, etc.
The major limitation with Parenting Plans, however, is that they are not an enforceable document, i.e., neither parent can be “breached” by not following the terms contained within the Parenting Plan.
If one parent does not uphold their end of the agreement as outlined in the Parenting Plan, a dispute can arise, leading the matter to proceed to Court. The Court will take the substance of the Parenting Plan into account when deciding what Parenting Order to make. However, the Court is not bound to follow a Parenting Plan and will make a judgement based on what they believe to be in the best interests of the children.
If parents are after something more certain and enforceable in the event of a breach, then Consent Orders are the way to go.
Consent Orders are made by consent, with both parties coming to an agreement and submitting the proposed Orders to the Court.
If the Court is satisfied that the proposed Orders are in the best interests of the children, then Orders will be made. Consent Orders can be drafted in a way that still allows the parents to have a level of flexibility.
Orders made by consent have the same effect as Court determined Orders, and breaching a Consent Order could result in the Court making an order that:
- compensates a person for lost contact time;
- varies an existing order;
- or punishes a person by way of a fine or imprisonment.
If parents are unable to reach an agreement required for the preparation and filing of Consent Orders, then a Court determined parenting Order will likely be the only option.
These Orders will stipulate each party’s responsibilities and arrangements for the children, just as Parenting Plans and Consent Orders do however, as these Orders are determined by the Court, the parties have less of a say and these Orders are usually less flexible than a Parenting Plan or Consent Orders.
Again, if a Court determined Order is breached, a Court can make Orders that include enforcement and punishment.
Attwood Marshall Lawyers – helping families resolve disputes with as little conflict as possible
Our family lawyers handle parenting matters with care and compassion. When parents are negotiating arrangements for children, it is always best to get trusted legal advice to ensure agreements are documented in a way that is appropriate for the family and ensures the best interests of the children are met.
If you are unable to come to an agreement with a former spouse and need help establishing a parenting plan, or parenting order, we can help provide considered legal advice and action.
Attwood Marshall Lawyers have a dedicated team of family lawyers who practice exclusively in this complex area of law. The team are highly experienced in children and parenting matters, as well as helping people navigate divorce and separation, negotiate property settlements, draft binding financial agreements, and support people in domestic and family violence situations.
If you need help with a family law matter, please contact our Family Law Department Manager, Donna Tolley, on direct line 07 5506 8241, email firstname.lastname@example.org or free call 1800 621 071.
Credibility and conduct in family law matters: What we learnt from the Johnny Depp & Amber Heard trial
Free Info Pack
To find out more about parenting matters including child support, provide your details below and our Information Pack will be sent to your inbox.