6 Apr 2016

It is in the best interests of the children of separating parents that the parents reach agreement as to their ongoing care.

Separating parents may reach agreement in relation to the care arrangements for the children by way of:

1. An informal, unwritten agreement;

2. A written, signed and dated Parenting Plan; and

3. Parenting Orders made by the Family Court.

In deciding which of these approaches is best for the children it is necessary to consider the differences.

Informal Agreement

An informal, unwritten agreement will work well for separated parents in limited circumstances where the parent/s:

●          communicate well;

●          do not undermine the parenting of the other parent;

●          actively encourage the relationship between the children, the other parent and their extended family; and

●          otherwise agree on all aspects of parenting.

Parenting Plan

A Parenting Plan is a written, signed and dated agreement made between separating parents in relation to:

●          the care arrangements for the children, including with whom they live and the time the children are to spend with the other parent and/or another person;

●          the decision making to be made by a parent and/or another person;

●          the communication a child is to enjoy with another person;

●          agreement on the method of discipline of the children;

●          how to facilitate future discussions about the care arrangements for, or issues in relation to, the children; and

●          the process to be used in resolving disputes about the terms of the Parenting Plan.

A Parenting Plan may be a good option for parents who;

●          work well together and are able to resolve their own issues;

●          trust one another with the ongoing arrangements for the children; and

●          are seeking a large element of flexibility with these arrangements. 

Unfortunately, this is not the case in a large portion of cases. 

While Parenting Plans are flexible and are ideal for parents who get along well, they are not legally enforceable.

Parenting Orders

Parenting Orders are Orders made by the Family Court, made either with the consent of both parents or following a defended hearing.

Parenting Orders are a likely good option in circumstances where certainty and enforceability are of primary importance to either parent.

When agreement has been reached, the process of filing an Application for Consent Orders in the Family Court is simple and just requires the approval of a Court Registrar once the best interests of the children have been considered.  This decision can be made in the absence of the separating parents.

Parenting Orders are enforceable.  If a parent breaches a Parenting Order a Contravention Order can be filed in the Family Court.  There are sanctions imposed for breaches of Order.

Parenting Orders versus Parenting Plans

If there is a signed and dated Parenting Plan in place and proceedings are later issued in the Family Court, the Court is required to have regard to the terms of the most recent Parenting Plan signed by the parents if it is in the best interests of the child for the Court to do so. 

The terms of the Parenting Plan will override the Parenting Orders to the extent the terms are inconsistent.  An exception applies if it can be shown the Parenting Plan was signed by a parent under duress, coercion or threat. 

Care must be taken to obtain independent family law advice prior to signing a Parenting Plan.  The Parenting Plan might have some future influence on a Judge if the matter were to proceed to a trial before the Family Court.

It is important that separating parents obtain independent legal advice prior to signing a Parenting Plan, both before or after Parenting Orders have been made by the Family Court.

The flexibility afforded by Parenting Plans must be weighed against the legal enforceability of Parenting Orders.   Whichever avenue is elected, the importance of obtaining independent specialist legal advice remains.

This is general information only, and does not constitute specific legal advice. If you would like further information in relation to this matter or other legal matters please contact our office on Freecall 1800 609 945 or email us now.

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