Parenting Plans and Parenting Orders: What’s the difference?
Parenting arrangements after separation are not straight forward. It’s not just where your children will spend their weeks and weekends. The intricacies of your children’s lives need to be mapped out – birthday arrangements, authorised medical treatment and requirements for international travel to name a few.
To document these arrangements and finer details, separated parents have the option of entering into parenting plans or obtaining parenting orders. To decide which is appropriate for you, it is important to first understand how they differ.
What is a parenting plan?
A parenting plan is an informal agreement between parents about arrangements for children. Typically, a parenting plan covers the sharing of daily care and responsibilities, as well as how parents will deal with the important long term decisions about children.
Parenting plans are often provided to the Child Support Agency to enable a fair assessment, based on accurate care arrangements.
What are the technical requirements?
A parenting plan can take any format and there is no need for technical legal wording. Pursuant to the Family Law Act 1975, the only technical requirements for a parenting plan are that is:
- in writing;
- signed and dated by both parents; and
- made free from any threat, duress or coercion.
What goes in a parenting plan?
A parenting plan can be as simple or extensive as you like. It can cover anything to do with parenting your children and as there is no one size fits all, can be tailored to suit your and your children’s needs. It will typically include details like:
- parental responsibility for the care, welfare and development of your children;
- how much time your children will spend with each parent;
- how much time your children will spend with other important people, like grandparents;
- where your children will spend important dates, like their birthdays, Mother’s Day, Father’s Day and religious holidays;
- how often and where the children may travel to, including the sharing of responsibilities like travel insurance and passports;
- how you will deal with big decisions like choosing a school or seeking medical treatment;
- how you will contact each other and the tone of that communication; and
- how expenses in relation to the children will be shared.
As children grow and develop, parenting arrangements that were once a perfect fit can become outdated. It is a good idea for a parenting plan to include how to vary the plan if any changes become necessary and how any unforeseen disputes about the plan might be resolved.
A parenting plan can also contain recitals. Recitals reflect the context in which the parenting plan is made, for example, “the parents recognise and encourage the important relationship that the children have with each of them.”
What happens if one parent doesn’t follow the parenting plan?
A parenting plan is not legally enforceable.
This means that if one parent does not honour the agreement, the Family Court is not able to make them abide by it. However, if the situation escalates and an application is made for parenting orders in the Family Court, the court must consider (but is not bound by) the terms of the parenting plan.
If both parents are not following the parenting plan because they agree a different arrangement is appropriate, they can enter into a subsequent and updated parenting plan.
How can I make the parenting plan legally enforceable?
If parents agree to do so, they can make an “Application for Consent Orders” to the Family Court and submit the parenting plan for approval by the Registrar. If the Registrar is satisfied that the parenting plan is in the best interests of the children, legally enforceable Court Orders will be made in terms of the agreement.
If parents do not agree to making the parenting plan legally enforceable, an “Initiating Application” must made to the Family Court seeking parenting orders.
What are parenting orders?
Parenting Orders are made by the Family Court, either by consent of the parents (as mentioned above) or by the decision of a Judicial Officer.
As with parenting plans, parenting orders may deal with the care arrangements for children, as well as parental responsibility for important long term decisions about care, welfare and development of children.
Parenting orders are legally enforceable and each person affected by the order must follow it. In doing so, you must take positive action and all reasonable steps to ensure that the orders are followed. This includes positively encouraging children to comply with the orders.
What are the technical requirements?
To commence proceedings, parents must apply to the Family Court for parenting orders – either jointly if applying for consent orders or independently if applying for parenting orders that are contested.
It is important to seek legal advice before applying for parenting orders, as certain supporting documentation is required, pre-filing procedures must be satisfied and technical requirements for drafting of orders apply.
What goes in parenting orders?
As with a parenting plan, parenting orders may deal with whom the children will live with, the allocation of parental responsibility and any other aspect of the care, welfare or development of the children.
It is important to note that if you seek orders that concern payment of child-related expenses, the correct application must be made.
Judicial Officers often implement processes into parenting orders that reduce further reliance on the Family Court system. For example, they might outline steps that parties have to follow before being able to ask the Family Court to change an order.
What happens if one parent doesn’t follow the parenting order?
The Family Court can penalise a party for failing to comply with a parenting order.
However, Judicial Officers don’t keep tabs on parties to ensure they are playing by the rules. An application must be made to the Family Court, alerting it to the alleged contravention and setting out the relevant evidence.
If the Family Court finds that there has been a contravention without reasonable excuse, it may impose a penalty depending on the severity and type of contravention. Possible penalties include:
- order the contravening parent’s attendance at a parenting program or participation in community service;
- compensate the other parent for time lost with children as a result of the contravention;
- require the contravening parent to pay a bond;
- order the contravening parent to pay costs;
- order the contravening parent to pay a fine; or
- order the contravening parent to a sentence of imprisonment.