A parenting plan set by you or A parenting order set by the court

When parents separate, it will often have a big impact on children, particularly younger children. There are some circumstances where it is preferable to have court orders in place.However, in some circumstances, it might be better for a separated family to have the flexibility of a parenting plan.  A parenting plan or parenting court orders are the different ways in which arrangements for the children can be formalised.

A parenting plan is an agreement that is normally negotiated between parents who are on amicable talking terms or with the assistance of a family dispute resolution practitioner.   The downfall of such agreement is that it is not legally enforceable and you cannot bring the matter before the court.

A parenting plan can have the effect of making a previous court order, on the same issue, unenforceable. For example, if earlier court orders asserted that a child was to spend equal time with each parent, and the parents now make a proper parenting plan stating that the child will live with one parent and spend particular time with the other, the order for equal time will no longer be enforceable.  A parenting plan may be changed, or terminated, at any time by written agreement between the parents.

A parenting plan (or parenting order) may deal with any one or more of the following:

  •     the person with whom the child is or the children are to live;
  •     the time a child spends or the children spend with another person (such as a grandparent);
  •     the allocation of parental responsibility for a child or children;
  •     the form of consultations between parents in relation to parental responsibility;
  •     the communication each child is to have with other persons;
  •     the maintenance of the child or children;
  •     the process to be used for resolving disputes about the terms or operation of the parenting plan;
  •     the process to be used for changing the parenting plan; and
  •     any aspects about the care, welfare, and development of a child or children or any aspect of parental responsibility for a child or children.

The plan must:

  •     be in writing;
  •     be signed by both parents;
  •     be dated;
  •     deal with certain parenting issues and
  •     not be made under any threat or coercion:

Parenting Orders

The Federal Circuit or the Family Court can make parenting order based on an agreement between parent (consent order) or other orders under section 64B of the Family Law Act. (See other issues referred above in this article).  The court will not accept any application seeking parenting order unless both parties participate in pre-action procedures, including attending a Family Dispute Resolution Conference.

  • Who can apply for parenting orders?
  • Either or both of the child's parents,
  • the child's grandparents; or
  • any other person concerned with the care, welfare and development of the child (section 65C FLA).

Types of Parenting Order

There are a number of types of parenting order:

  • orders by consent (agreement between the parties);
  • final orders, made by a judge or magistrate at a trial;
  • interim orders (temporary orders);
  • other interlocutory orders (procedural and short-term), such as orders for parentage testing, location or recovery of a child
  • ex parte orders (orders made without notice to the parent);
  • orders to “vary, cancel, suspend or revive” earlier orders; and
  • orders by way of injunction.