Parenting plans v consent orders

How to formalise children/parenting arrangements

For most families, post-separation, the arrangements for the children are as agreed or otherwise in accordance with the parents’ and/or grandparents’ informal agreements amongst themselves. It is not unusual, especially after all parties receive family law advice, that parties go away, reach an agreement regarding the children, and return asking what the best way is to formalise the agreement. This article explains the various ways parenting arrangements can be formalised and the advantages and disadvantages of each option.

Option 1: Informal Agreement

Provided there is no dispute regarding paternity, Section 61C of the Family Law Act gives both parents of a child, parental responsibility. Parental responsibility is the decision-making power about children and includes all decisions regarding their care, welfare and development, including education, health, where they live, with whom they spend time with, and the child’s religious and cultural upbringing.

The parliament’s intention is to allow parents to make decisions for themselves without the government interfering or mandating how they should raise their children.

This is not to say that the Family Law Act does not offer some guidance to parties. Section 61CA of the Act states that if it is safe to do so, parents of a child are “encouraged” to consult each other about “major long-term issues” in relation to the child, and in doing so are to have regard to the best interests of the child as their paramount consideration. Major long-term issues are defined in the legislation as including but not limited to decisions about:

The child’s education both current and future.
The child’s religious and cultural upbringing.
The child’s name.
The child’s health.
Changes to the child’s living arrangements.

Therefore, as a starting point, parenting arrangements, including where the child lives, who they spend time with, and with whom they communicate, can simply be a matter for parents without the need for anything in writing.

Option 2 : Parenting Plans

Option 1 is based upon the view that the parties will always be able to reach an agreement about matters regarding their children. Unfortunately, this is not always the case.

In those circumstances, parties who want more formality and specificity to whatever parenting arrangements they have agreed upon can enter into a Parenting Plan. A Parenting Plan is an agreement that:

Is in writing.
Is made between the parents of a child.
Is signed by the parents of the child.
Is dated.
Deals with one or more of the following:

a) With whom the child should live.
b) The time the child spends with the other person or other persons.
c) The allocation of parental responsibility.
d) Where two or more people are to share parental responsibility of a child, the form of consultation among those persons about decisions to be made in the exercise of that responsibility.
e) The communication of a child is to have with another person or other persons.
f) Financial maintenance of a child.
g) The process to be used for resolving disputes about the terms or operation of the parenting plan.
h) The process to be used for changing the plan to take into account the changing needs or circumstances of the child or the parties to the plan.
i) Any other aspect of the care, welfare and development of the child and importantly, can also deal with any of the above matters in relation to the grandparent, other relative, or any other person that is not a parent of the child.

The benefits of entering into a Parenting Plan are that they are relatively simple documents that can be drafted at minimal costs to parties (which is the recommended course) or even by parties themselves if they so wish. The Parenting Plan can cover nearly all matters that will commonly be in dispute regarding the care of a child but can cause some problems where there is a dispute about international travel (this is where a parenting order may be preferable).

One of the biggest advantages of a Parenting Plan is that they are flexible document that can be amended or changed at any time, usually to match the development and changing circumstances of the child and the parties to the plan. Consequently, Parenting Plans tend to be the recommended course of action involving young children so that the arrangements may grow organically with the child.

The biggest disadvantage to a Parenting Plan is that, despite the document being signed by parties, it is not an enforceable document at law and a party cannot be punished or compelled to follow the terms of a Parenting Plan. For some parties, the lack of enforceability makes these documents not suitable, especially for high-conflict matters where there is mistrust between parties.

Section 65DAB does mandate that the Court is to have regard to the terms of the most recent Parenting Plan when considering parenting orders, which does mean that the Court tends to ask why the Parenting Plan is no longer being followed or why it ought not be followed, but it does not create a presumption that the Parenting Plan should be followed.

An interesting provision within the Family Law Act is found at Section 64D, which mandates that any parenting order made by the Court is taken to include a provision that the order is subject to a parenting plan that is entered into by the child’s parents after the orders are made. This offers an easy way for parties to be able to change a parenting order without needing to revisit the Court.

Option 3: Parenting Orders

For some families, parenting orders are the best method of formalising the arrangements for a child.

A parenting order can cover all the matters that a parenting plan can but can also include provisions about the steps to be taken before an application is made to the Court for a variation of that order to take account of the changing needs or circumstances of the child or parties. A parenting order can also include for the purposes of Section 65Y an order which allows parties to take a child outside of the Commonwealth of Australia.

Section 65Y of the Act provides that a person commits a criminal offence if there is a parenting order in place and that person takes the child subject to the parenting order outside of Australia without the written consent of the other party or unless in accordance with an order of the Court. The punishment for such an offence can be a maximum sentence of imprisonment for 3 years.

Accordingly, the biggest advantage of entering into parenting orders is that parties have the benefit of an order of the Court which must be followed unless parties agree otherwise or the orders are changed by way of a further order or parenting plan. The penalties for breaching an order of the Court can include changes to the parenting orders, being required to enter into a bond; the breach of which would lead to fines, immediate fines, and in the most serious of cases, imprisonment. Therefore, parenting orders can bring a sharp conclusion to disputes regarding children.

The main disadvantage of parenting orders is their lack of flexibility and that in the absence of an agreement or the orders being set aside, there is a requirement for parties to follow the parenting orders to the letter.

Whilst the legislation of course contemplates times when an order is contravened, the burden of proof falls on the person who contravenes the order so as to provide a “reasonable excuse”. A reasonable excuse is defined in Section 70NAD as including, but is not limited to:

Not understanding the obligations imposed by the Order, and importantly, the Court considering it appropriate, the person ought to be excused in respect of that contravention, which would then follow the Court explaining the terms of the orders. This is a very high barrier to overcome, as most people enter into parenting orders with the benefit of legal advice, so it tends to be a difficult threshold to prove that you did not understand the order.

The person contravened the order because the person reasonably believed that the person’s actions were necessary to protect the health or safety of the person or the child or any other person, and more importantly, the period of the contravention was no longer than necessary to protect the health or safety of the person, child or other person. This means that whilst there can be times when an order can be contravened due to the safety of a child, it is not a long-term solution and is meant to be a temporary solution until a party can apply to the Court to change/vary the orders because of whatever safety concern has arisen.

Parenting/children’s matters are a delicate area of family law where the benefit of early and comprehensive advice cannot be overstated. If you have a Family Law matter involving children and require advice, please contact our office on (02) 4944 3322 or via the form below to make an appointment with our Accredited Specialist in Family Law, Hayden Carr.