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 (‘FCFCOA’). Consent orders are written parenting agreements that have been approved by the FCFCOA. Parenting orders are parenting arrangements that have been made by the FCFCOA after a hearing.
The pros and cons of parenting plans, consent orders and parenting orders are discussed below.
Sometimes parents are able to reach an amicable agreement without wanting the agreement approved by the FCFCOA. This agreement is usually referred to as a parenting plan. Provided the parenting plan clearly sets out the child’s care arrangements, the 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 may 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; and
- procedures for making long-term decisions regarding the care, welfare, and development of the child.
It is also recommended to include procedures for varying the plan and the methods that can be used to resolve any disputes about the terms in the actual plan.
A parenting plan is not legally binding, accordingly, it cannot be enforced by the FCFCOA. If you would like your parenting plan to be legally binding and the other parent agrees, you can file an Application for Consent Orders with the FCFCOA. It is usually recommended you do this, as although you may currently have an amicable relationship with the other party, circumstances can change quickly (such as a party entering into a new relationship) which may affect your co-parenting relationship.
Consent Orders are a written agreement that has been approved by the FCFCOA.
Applying for your agreement to be made into a consent order is usually a straightforward process that involves submitting proposed parenting arrangements to the FCFCOA for approval.
The FCFCOA must be satisfied that the orders sought are in the best interests of the child before they are approved. Consent Orders have the same legal standing as parenting orders made by the FCFCOA after a hearing.
If the parties are unable to reach an agreement for parenting arrangements, and certain pre-action procedures have been followed, a party can apply to the FCFCOA for the parenting orders that they consider are in the child’s best interests. The other party can file a response informing the FCFCOA of the parenting orders that they consider are in the child’s best interests. The FCFCOA will take steps to encourage the parties to attempt to reach an agreement between themselves, failing which the FCFCOA will then hold a hearing and make final parenting orders.
It is possible that parenting orders made by the FCFCOA after a hearing do not reflect what either party have sought.
What happens if a party breaches a Consent Order or Parenting Order?
If any party included in the consent or parenting order breaches its terms, other parties stated in the orders can make a Contravention Application with respect to that breach, and the party in breach may be sanctioned by the FCFCOA.
The FCFCOA will consider the allegations and facts of the Contravention Application and may do the following:
- find there was no contravention;
- find the contravention occurred but there was a reasonable excuse for the party breaching the parenting order;
- find there was a ‘less serious contravention’ without a reasonable excuse; or
- find there was a ‘more serious contravention’ without a reasonable excuse.
It is important that you seek legal advice before filing an Application for Contravention as the FCFCOA may require you to pay all or some of the costs of the other party if it finds there has been no contravention of the orders. This may also apply if the contravention was established but with a reasonable excuse.
Consequences of breaching a parenting order without reasonable excuse
If the FCFCOA finds a party is in breach of the order without having a reasonable excuse, the FCFCOA 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;
- 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
- depending on the seriousness of the breach, sentence the person in breach of the order to a term of imprisonment.
If you are not seeking that a party be sanctioned for breaching the orders, but rather that the parenting orders resume, you should consider making an Application for Enforcement instead.
Parenting plans, Consent orders and Parenting orders all have their pros and cons. Although parenting plans are convenient and generally cheaper to draft than consent orders, they are not legally enforceable by the FCFCOA. This is why it is often recommended that an application be made to the FCFCOA for parenting plans to adopt the status of consent orders. This way, all parties to the consent order will have legal protection if needed. If you are unable to reach an agreement, you should consider filing an application for parenting orders to be made by the FCFCOA.
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.
If you or someone you know wants more information or needs help or advice, please contact us on (07) 4573 8602 or email [email protected].