Brax and Ricki have one child together, a son named Casey. When Casey was approximately one year old, Casey’s parents decided to separate. The separation between the parents was amicable and both Brax and Ricki agreed that they did not want to involve lawyers to assist in negotiating and formalising the care arrangements for Casey.
Brax and Ricki decided between themselves that Ricki would have the primary care of Casey and Brax would spend time with Casey each second weekend, each Wednesday night and for half of all school holidays. They also agreed that handovers would occur with Brax collecting Casey from Ricki’s home at the commencement of his time with Casey and deliver Casey back to Ricki’s home at the conclusion of his time with Casey. Consequently what Brax and Ricki now have is known as an “informal agreement”.
Recently, Brax has been sending other people to collect Casey from Ricki’s home at the commencement of his time with Casey. On one occasion it was Brax’s best friend Ash who came to collect Casey. On another occasion Brax sent his new girlfriend Simone.
Ricki had only met Simone once before and refused to hand Casey over. When Brax found out that Ricki refused to hand Casey over he was furious and telephoned Ricki straight away. Ricki reminded Brax that they had agreed that Brax would be the person to attend at the handovers. Brax claims he cannot remember agreeing to be the only person to attend handovers to collect and deliver Casey.
There is no written document to clarify the original agreement between Ricki and Brax, and in particular the agreement about handovers. What risks have Brax and Ricki exposed themselves to as a result of the informal agreement?
"Informal agreements have a high failure rate."
Informal agreements in relation to the care of children can be risky for various reasons. Primarily, informal agreements are not legally binding and therefore the parties to an informal agreement can renege on that agreement at any time. Foreseeably, this can cause major issues between the parties and result in the disruption of the care arrangements, as well as creating conflict between the parties.
Informal agreements have a high failure rate. The main reason for this is a breakdown in the communication between the parties or a misunderstanding between the parties about what the terms of the informal agreement are. This has been highlighted in the above example of Brax and Ricki.
While the parties may be amicable at the time of making the informal agreement, there is always a possibility that this may deteriorate in the future. If the relationship between the parties deteriorates and a party changes their mind about the terms of the informal agreement and consequently refuses to hand the child over, there are no enforceable remedies a party can immediately seek or penalties for the party breaching the informal agreement.
If the parents in this scenario had documented the agreement by way of a Parenting Plan, there would be evidence of what the parties had agreed that could be used in any subsequent Court application. If the agreement had been formalised as a Consent Order, the party could seek a Recovery Order in the Federal Circuit Court and file a Contravention Application against the breaching party. The Court is more likely to act swiftly where someone has breached a Court order.
The fact that there is an informal agreement can lead to complex evidential issues. Conversely, if there was a legally binding agreement in place regrading the children, then the Court would have a much clearer understanding of the care arrangements of the children and how to enforce what was agreed.