Navigating parenting arrangements during a separation can be difficult, particularly if you and your former partner or spouse are unable to come to an agreement regarding the care of the children. In this article, we will discuss what you and your former partner or spouse can do if you do come to an agreement, the differences between a parenting plan and parenting orders and in what circumstances they may be required.
What is a parenting plan?
A Parenting Plan is a written agreement that covers arrangements for children, following a separation.
While it is a written agreement, a parenting plan is an informal way of documenting the parenting arrangements that are agreed to by both parents for any child/ren of the relationship after separation. The only way to formalise the parenting arrangements, is by making an Application to the Court and obtaining Parenting Orders.
The parenting plan will usually include details such as:
- where the child/ren will live;
- which parent a child/ren will spend time with and/or communicate with, including how this time will be facilitated;
- the processes that will be put in place to resolve future disputes about the child; and
- any other arrangements relating to the rights and obligations of the parents in so far as the child/ren is concerned.
Given the nature of this type of agreement, it is required to be signed and dated by each parent.
What is a Parenting Order?
A Parenting Order is a Court Order, whereby the Court considers the matter and makes a determination as to the parenting arrangements that are in the best interests of the child/ren of the relationship.
In some instances, a parenting order can follow the parties filing an Application with the Court and requesting that the Court make a decision as to the arrangements most suitable to the child/ren of the relationship. This can often occur when the parties are unable to come to an agreement between themselves. The Court will then make orders initially on an interim basis, and thereafter on a final basis once a Final Hearing has been conducted.
If the parties can reach an agreement about parenting arrangements, they can jointly approach the Court and request that the Court convert the parenting arrangement into a Court Order. This can be done by way of an Application for Consent Orders.
Consent Orders made through the Court have the same legal effect as if they were Orders made by a Judicial Officer following a Final hearing. This means that if either parent does not comply with the terms of a Parenting Order (Regardless of if it is a consent order), the other parent has the ability to enforce the arrangement.
What are the key differences between Parenting Plans and Parenting Orders?
There are a few core differences between a Parenting Plan and Parenting Orders, that are important to be aware of to ensure they are right for your individual circumstances. These include:
- A Parenting Order is an order made by the Federal Circuit
and Family Court of Australia, and as previously explained,
these can be made by consent (and without the need to attend
Court).
- Parenting Orders can be very detailed and
comprehensive ensuring that there are no arguments or disputes
between parents in the future. Parenting Orders can also be
flexible where the parents have young children and circumstances
may change. However, they should usually include a default position
so that in the absence of an agreement there is something for the
parents (and more importantly the children) to fall back on.
- Parenting Orders will last until a child
reaches the age of 18, and they are very hard to set aside or
change unless there has been a significant change in circumstances
since the orders were made.
- As Parenting Orders are Orders of the Court,
if they are contravened or breached and this issue is brought to
the Court's attention, the Court may force the non-complying
parent to comply. The Court could also make orders requiring
make-up time, mandating the parent undergo counselling or enrol in
a parenting course, or in extreme circumstances, change the
residence of the child.
- A Parenting Plan is a written agreement that
is dated and signed by both parents, about parenting arrangements
for the child/ren. It is not legally enforceable.
- The biggest difference between a Parenting Plan and
Parenting Orders is that parenting orders are binding and
enforceable at law, while a parenting plan is not legally
enforceable. There will be no legal repercussions or consequences
issued by a Court if a party does not comply with the parenting
plan. You will have to commence Court proceedings and ask the Court
to make parenting orders if the other parent fails to comply with
the parenting plan and you are unable to reach an agreement that
resolves the issue. While the Court may consider the terms of the
latest parenting plan and the existing arrangements for children,
when making any parenting orders, the Court is not bound by the
terms of any existing parenting plan.
- The costs of running a Contravention Application (when there has been a breach of existing Parenting Orders) is much lower and likely to occur much sooner, than having to commence proceedings following one parties' lack of compliance with a parenting plan.
When are Parenting Plans effective?
Each family has its own circumstances which are relevant when deciding whether a parenting plan is more appropriate than parenting orders.
Parenting plans work in circumstances where the parents can communicate effectively and work collaboratively together to make decisions that are in the best interests of the child/ren. High conflict situations or situations where there is a significant power imbalance, possibly due to family violence are unlikely to allow for proper communication, and in this instance, a parenting plan may not be as effective as a parenting order, which can be legally enforced by the Court.
If you are worried that your partner may not comply with a parenting plan, or if there is an international element to your family dynamic, a parenting plan may also not be effective as you may experience issues in obtaining a passport for your children or leaving Australia with your children.
Further, there may be risks arising from international travel with the children, including child abduction, that cannot be mitigated by having the parenting arrangement documented in a parenting plan.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
