Parties coming to agreement at the end of private discussions, or with the assistance of lawyers or family dispute resolution practitioners, may decide to record the terms of their agreement in writing. If the written agreement about parenting issues is dated and signed by both parents of a child then it satisfies the requirements of a ‘parenting plan’.
Typically a parenting plan deals with the same issues that a court might make orders about in a family law case, eg when the child is to spend time with each parent and how specific aspects of parental responsibility are to be shared. A parenting plan can usefully state also:
- how, when and why the parenting plan might change in the future;
- what type of contact and discussion the parents will have with each other about future issues to be decided about the child; and
- how the parents plan to go about resolving any future disagreements.
A parenting plan has special power to override earlier court orders. This means that parents with court orders do not necessarily have to go back to court to have them adjusted as children mature and their needs and circumstances change.
Parenting plans are made and remain as private documents unless they are referred to in a future court case. They are flexible and useful documents for circumstances where the parents are usually able to resolve their own issues. But parenting plans have no legal effect beyond their capacity to override earlier court orders and influence the thinking of a judge in a later court case. A person cannot be forced to comply with a parenting plan.
If separating parents have more conflict between them, or would like the strength or certainty of the authority of the court behind their agreement, they can file a copy of their parenting agreement at court by applying for ‘consent orders’. There is usually no hearing in the court when an application for consent orders is made. The proposed agreement is reviewed in court offices and then issued back to the parties in the form of written orders. If a person breaches a consent order, the other party can apply to the court for assistance with enforcement in ‘contravention proceedings’.
If parties have tried and failed to resolve their parenting dispute privately, they may want to ask a judge to decide the issues for them. They commence this process by filing an application in a court that has the power to hear cases under the Family Law Act. This might be the Family Court of Australia, the Federal Circuit Court or, in NSW, a Local Court, depending on the circumstances of the case.
If a case proceeds from the initial application through to the end of a hearing, the court is likely to make parenting orders. Any person with an interest in the care, welfare and development of a child is entitled to apply for parenting orders – even if they are not a parent!
Parenting orders are about arranging aspects of parental responsibility for a child that the parents cannot agree about. Often this is about where or with whom a child will live and arrangements for being with each parent at different times. The court has a special process for deciding what orders to make. The paramount consideration for the court has to be ‘the best interests of the child’. For more details see Presumption of equal shared parental responsibility and Best interests of the child.
Parenting orders no longer refer to concepts like ‘custody’ or ‘contact’. Although parenting orders can still refer to ‘the person with whom a child resides’, there are no longer labels such as ‘residence parent’ or ‘contact parent’. Reflecting the new emphasis on shared, co-operative parenting, parenting orders strive for clear definition about patterns and ‘types of time’ that a child will spend with each parent (eg half of each school holiday with each parent).
Court orders can also deal with other specific aspects of parental responsibility such as where the child will go to school or what medical treatment the child will (or won’t) have.