A parenting plan is an informal written parenting agreement that includes parenting and care arrangements for children but has not been formally approved by the Federal Circuit and Family Court of Australia (FCFC). Parenting orders (or consent orders) are written parenting agreements that have been approved by the FCFC through an application made to the court. Parenting orders may also be made by the Court after a contested hearing.
The pros and cons for both parenting plans and parenting orders are discussed below.
This article provides general information only and you should obtain professional advice relevant to your circumstances. We always recommend you seek legal advice from an experienced family lawyer before entering into any parenting agreement.
Sometimes former partners are able to reach an amicable agreement about arrangements for their children without the need to commence court proceedings. This type of agreement is usually referred to as a parenting plan. Provided the parenting plan clearly sets out the rights and obligations of each parent (or any other relevant person), and is signed and dated by each person involved, it should generally be deemed as a sufficient parenting agreement.
A parenting plan can address issues such as:
- who a child spends time and lives with;
- the parental responsibility for a child;
- arrangements for special days such as birthdays, religious, and other holidays;
- procedures for making long-term decisions regarding the care, welfare, and development of the child.
As parenting plans are not legally binding, it is advisable to include procedures for varying the plan and the methods that can be used to resolve any disputes about the terms included in the actual plan.
As noted, a parenting plan is not binding and accordingly cannot be enforced by the court. If you would like your parenting plan to be legally binding, you can file an Application for Parenting Orders with the FCFC. It is usually recommended that you do this. Although you may have an amicable relationship with your ex-partner, circumstances can change quickly (such as your ex-partner entering into a new relationship) which can affect your parenting plan! Applying for your parenting plan to be made into a formal parenting order is usually a straight-forward process which involves submitting your plan to the Court for approval by the Registrar. Once the Registrar is satisfied that the plan is in the child’s best interests, court orders reflecting your parenting plan will be granted.
A parenting order is a written agreement that has been approved or determined by the FCFC through an application made to the court. The order covers parenting arrangements for children.
The FCFC must be satisfied that the orders sought are in the best interests of a child before they are approved. Once the parenting orders have been approved by the Court, they have the same legal standing as if they had been made by a court after a hearing.
If any party included in the parenting order breaches its terms, other parties stated in the orders are entitled to make a Contravention Application with respect to that breach, and the party in breach can be sanctioned by the FCFC.
What happens if a party breaches a Parenting Order?
If you believe that one of the parties included in your parenting orders has breached a term of the order, you should complete and file an Application for Contravention alleging the party has breached the orders.
The FCFC will consider the allegations and facts of the Contravention Application and may do the following:
- find there was no contravention;
- find the contravention was established but there was a reasonable excuse for the party breaching the parenting order;
- determine there was a less serious contravention without a reasonable excuse;
- determine there was a more serious contravention without a reasonable excuse.
If is important that you seek legal advice before filing an Application for Contravention as the court may require you to pay all or some of the costs of the other party if it finds there have been no contravention of the orders. This may also apply if the contravention was established but with a reasonable excuse.
The Court also has the power to vary parenting orders but will only do this sparingly.
Consequences of breaching a parenting order without reasonable excuse
If the Court finds a party included in a parenting order is in breach of the order without having a reasonable excuse, the Court may take the following actions:
- order that the person in breach attend a post-separation parenting program;
- make a further order to compensate for any time lost with the child;
- make an order for the person in breach to enter into a bond, possibly with conditions such as requiring the person to attend family counselling;
- order that the person who committed the breach pay all or some of the costs of the person who filed the contravention proceedings, fine the person in breach; or sentence the person in breach of the order to a term of imprisonment, depending on the seriousness of the breach.
Parenting orders and parenting plans both have their advantages and disadvantages. Although parenting plans are convenient and generally cheaper to draft than parenting orders, they are not legally enforceable by a Court. This is why it is often recommended that an application be made to the Court for parenting plans to adopt the status of parenting orders. This way, all parties to the parenting order will have legal protection if needed.
This article provides general information only and you should obtain professional advice relevant to your circumstances. We always recommend you seek legal advice from an experienced lawyer before entering into any parenting agreement.
If you or someone you know wants more information or needs help or advice, please contact us on (08) 8344 6422 or email [email protected].