The difference between Parenting Plans and Parenting Orders – Part Two

In the second part of our two-part series, our Family and Relationships Law expert, Paul Lewis looks at how Parenting Orders differ from Parenting Plans and their comparative advantages and disadvantages. You can read Part One of the series here. [3 minute read]

What is a Parenting Order?

Under section 64B of the Family Law Act, a parenting order is an order under Part VII of the Act that deals with one or more of the following:

1. the person or persons with whom a child is to live;
2. the time a child is to spend with another person or other persons;
3. the allocation of parental responsibility for a child;
4. if 2 or more persons are to share parental responsibility for a child–the form of consultations those persons are to have with one another about decisions to be made in the exercise of that responsibility;
5. the communication a child is to have with another person or other persons;
6. maintenance of a child;
7. the steps to be taken before an application is made to a court for a variation of the order to take account of the changing needs or circumstances of:
   1. a child to whom the order relates; or
   2. the parties to the proceedings in which the order is made;
8. the process to be used for resolving disputes about the terms or operation of the order;
   1. any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.

Section 64B (2) concludes with the statement:

The person referred to in this subsection may be, or the persons referred to in this subsection may include, either a parent of the child or a person other than the parent of the child (including a grandparent or other relative of the child).

Parenting orders can therefore cover the same list of matters that a parenting plan can do¹. So far there is no major difference between the two.

What does the "best interests of the child" mean in the context of parenting orders?

Parenting orders can be made by consent, provided that the Court must under section 60CA regard the best interests of the child as the paramount consideration. That prescriptive requirement is however qualified by section 60CC(4) that states:

(4) If the court is considering whether to make an order with the consent of all the parties to the proceedings, the court may, but is not required to, have regard to all or any of the matters set out in subsection (2) or (3).

In practice, the effect of sub-section (4) is that the Court is not obliged to undertake an inquisitorial enquiry as to whether proposed parenting orders that the Court is asked to make by consent, are in the child's best interests. Conceptually, the qualification in sub-section (4) is not majorly different to a Parenting Plan being made away from the gaze of the Court.

Since the amendments of 2024, section 60CC defines how a court determines what is in a child's best interests. The long list of factors under s60CC (1), (2), (2A) and (3) includes:

1. what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
   1. the child; and
   2. each person who has care of the child (whether or not a person has parental responsibility for the child);
2. any views expressed by the child; and
3. the developmental, psychological, emotional and cultural needs of the child, among about one dozen explicit factors, and other considerations that are not explicit, but which are well known to family law professionals or "advisers."

The role of advisers in the family law system and who they are

The critical importance of "the best interests of the child" principle and the role of advisers in informing and educating persons about matters concerning a child are seen through the language of section 60D, that states:

60D Adviser's obligations in relation to best interests of the child

1. If an adviser gives advice or assistance to a person about matters concerning a child and this Part, the adviser must:
   1. inform the person that the person should regard the best interests of the child as the paramount consideration; and
   2. encourage the person to act in the child's best interests by applying the considerations set out in subsections 60CC(2) and (3).
2. In this section:

[A CCS practitioner is a children's contact services practitioner; a para-professional that supervises spend time arrangements at a contact centre or elsewhere, or who facilitates the changeover of children between parents or other carers. A CCS practitioner is defined at section 10KC as an individual who is accredited as a CCS practitioner under the Accreditation Rules].

The above advisers also have a positive obligation under section 63DA(1) to make people aware of the existence of a Parenting Plan, as a means by which they may reach an agreement and document it, and of available resources to help them obtain assistance in entering into a parenting plan. Whilst there has been a lot of research over the last 15 years about the introduction of mandatory family dispute resolution, this author is not aware of any government or other research that measures compliance by advisers with their obligations under section 60D and section 63DA.

Criticism of Parenting Plans

The chief disadvantage of a parenting plan is that non-compliance by a party with a provision in the plan cannot be prosecuted through an enforcement application to the Court. In short, a parenting plan cannot be enforced but with parenting orders a party can take enforcement action for an alleged breach of a parenting obligation. The inability to enforce a parenting plan is tempered by the fact that under section 65DAB, if the parties to the parenting plan end up in Court, "the court is to have regard to the terms of the most recent parenting plan (if any) that has been entered into between the child's parents...if doing so would be in the best interests of the child."

Some lawyers downgrade the strength and usefulness of parenting plans by saying "they are not binding." Such a statement is incorrect- the binding nature of provisions in parenting plans should not be confused with the issue of enforceability. The starting point is that provisions in a parenting plan are binding because a parenting plan is recognised under the Act².

If someone wants to claim that a parenting plan provision is or was not binding, for example, because of coercion or duress, the binding nature of a provision only falls to be decided when the parties go to court and the Judge must determine the dispute. Compare that scenario to the person with a parenting order who alleges that the other party has breached an obligation under a parenting order and they decide to file and run an application for enforcement. In simple terms, both scenarios involve a trip to Court.

What is the verdict with the comparison between parenting plans and parenting orders?

Experience indicates that the majority of enforcement applications fail because of technical problems with the application or with the evidence that is relied upon. Add to that statistic that an enforcement application is:

1. time consuming (there is no Prothonotary or other Court official that takes the action on behalf of the affected party), and
2. expensive if a private lawyer is engaged to prepare and run the application.

Fourthly, if breach of a parenting order is proven, the range of penalties for a first breach are considered by most laypeople to be minor.

None of the Court's remedies in response to a proven breach will necessarily correct the problems in the co-parenting relationship. I therefore suggest that the apparent benefit of parenting orders being enforceable is over-stated, if not, illusory. There is no clear benefit for people to use a parenting order instead of a parenting plan if there are no safety concerns, or other types of risk factors, in relation to the child or affecting a party that is involved with the care of the child.

To conclude, parenting orders, including parenting orders by consent, have impact, and are popular with lawyers, because they involve the intervention of the Court and harness the "best interests of the child principle" through the Court's gravitational pull. Parenting plans harness the best interests of the child principle in different ways and are a less formal, cheap and more flexible way to allow parents and other carers to arrive at a written agreement that is recognised as having validity under the Family Law Act.

Footnotes

¹Refer to s64B for the meaning of parenting order and related terms.
²A Parenting Plan is what lawyers call "a creature of statute" and it therefore has status and validity as a legally binding document.

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.