Australia: Parenting plans or Family Court Orders? - your choice

Last Updated: 7 April 2014
Article by Alison Brooks and Loretta Carč

If you separate from your husband, wife or de facto partner and you have children together, you both have a continuing responsibility for the care of your children. So what are the options when it comes to figuring out the care arrangements for the children?

If you are unable to discuss those options between yourselves, you are encouraged to attend mediation.

The discussions will include:

  • who the children live with
  • when they see the other parent
  • the specifics of hand-over, such as where it will happen, who drives
  • providing for contact by other means (such as phone calls etc) when the children are with the residential parent
  • arrangements for special events like Christmas, New Year, Birthdays, Mother's Day, and Father's Day
  • arrangements for travel – domestic or international
  • schooling, religion, and medical care amongst other issues

The level of detail in the agreement will often depend on how flexible the parties are and how well they communicate after separation.

If the parties can reach agreement on the arrangements for their children at mediation, the mediator will usually encourage them to draft and sign a Parenting Plan. However, they do so at their own risk for one very important reason – enforceability.

If you and your ex agree on the arrangements for the children, and record this in a parenting plan, what happens if one party stops adhering to the plan? They might, for example, stop you spending time with your child. You cannot enforce the plan.

We always commend parties for being able to reach agreement on the arrangements for the children but we strongly recommend that the agreement/parenting plan is formalised by filing an application for Consent Orders at the Family Court of Western Australia.

The parties and their lawyers are not required to attend court. The process merely requires the details of the agreement/parenting plan to be filed at the Family Court. Assuming they are in the best interests of the children, the court will make the orders.

This way, if your ex becomes less co-operative (which can occur, for example, when one party starts a new relationship), you have the option of asking the court to enforce the agreement.

The Family Court requires, in the absence of urgency or other reason such as family violence, that all parties attempt mediation to resolve their issues before seeking its assistance.

If you have attended mediation and have not been able to reach final agreement, or if the other party refuse to attend mediation at all, you will be issued with a certificate which will allow you to file an application at court setting out your proposals for the future care of your children.

Thereafter, your ex will file their proposal in response and the matter will progress through the court which will assist you in your attempts to reach agreement. If that is not possible, it will make orders based on the best interests of the children.

If one party then fails to comply with the orders, whether agreed or ordered by the court, the other party can file an application to enforce the orders. The court can apply a variety of sanctions to ensure compliance.

The sanctions applied will depend upon the situation and the nature of the breach but can include paying the other party's legal costs, paying compensation for lost time with a child, a requirement to attend a post-separation parenting program, a community service order, payment of a bond or fine or even imprisonment.

As time passes things might change. One or both of you could re-partner, you might have more children, your children's needs might change as they get older. If orders were made by consent, or by the court, you may both agree to change the orders by consent. Again, any informal changes not recorded by the Family Court will not be enforceable.

It is only possible to change orders by consent and have these changes made into orders of the court where the original orders provide for this.

However, it is possible to seek an amendment to orders made by the Family Court, under section 65D(2) FCA.

As you might imagine, the court wants to limit litigation and therefore it is generally only possible to seek an amendment where there has been a significant change in the circumstances of the parties, or a material factor was not disclosed at the earlier hearing which would justify changing the orders.

This is so even where the parties both agree to a change in the orders but will also depend on the changes proposed as well as how long it has been since the previous orders were made.

Whatever you do, you need to remain flexible and reasonable as far as possible, whilst making sure you safeguard your own position in case problems crop up further down the track.

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.

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Alison Brooks
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