A parenting plan is a voluntary, written agreement between both parents that outlines how you will share parental responsibility, where your children will live, and how they will spend time with each parent. It gives you flexibility to adjust as circumstances change, but it is not legally enforceable. A parenting order, however, is a legally binding order made by the court. You can apply for a parenting order by mutual agreement (through a consent order), or a judge can issue an order if you cannot agree.
Having an agreement in place makes co-parenting smoother and reduces conflict. If you and your co-parent can cooperate, a parenting plan may be all that is required. If you need legal protection and enforceability, a parenting order ensures both parents follow the agreed terms. With over 20 years of experience in child custody law, Arcadian Legal offers a compassionate and professional approach to resolving complex family matters.
Understanding parenting plans and their role in co-parenting
Under Section 63C of the Family Law Act 1975 (Cth), parental responsibility includes all the duties, powers, responsibilities, and authority parents legally hold concerning their children. This includes making decisions about major long-term issues such as education, health, and religious upbringing. Each parent of a child under 18 holds parental responsibility, regardless of their relationship status or where the children reside, unless a court order specifies otherwise.
A parenting plan is a voluntary, signed, written agreement between parents that outlines the care arrangements for their children after separation. It can include details about where the children will live, their time with each parent, how parents will share parental responsibility, and how they will consult on important long-term decisions. The plan may also cover communication methods between parents and children, arrangements for special occasions, and processes for resolving future disputes or modifying the agreement as circumstances change.
One of the key benefits of a parenting plan is its flexibility. It allows parents to make arrangements that suit their unique family dynamics without court intervention, fostering amicable co-parenting relationships. However, it’s important to note that parenting plans are not legally enforceable. If disagreements arise or one parent does not adhere to the plan, the courts cannot enforce compliance based on the parenting plan alone. Parents may need to seek legally binding arrangements through the court system in such cases.
Parenting plans are typically written in plain English and simple terms, making them accessible and easy to understand for both parents and children. This clarity helps ensure that all parties know their roles and expectations, reducing the potential for misunderstandings and conflicts.
Parenting plans for children of different ages
A parenting plan can be made to suit each child’s needs, recognising that siblings may require different arrangements based on their ages, personalities, and circumstances. While maintaining sibling relationships is important, the best interests of each child is the guiding principle. Younger children may need more frequent transitions between parents to foster secure attachments, while older children might benefit from more stability in their living arrangements, particularly to support schooling and social connections. Parenting plans can also address particular needs, such as medical care, extracurricular activities, or emotional support. By making arrangements for individual children while fostering sibling bonds, parents can create a balanced plan that reflects the best interests of the family as a whole.
What if you can’t agree on a parenting plan
If you cannot agree on a parenting plan, the next step is to seek family dispute resolution (FDR), a mediation process designed to help parents negotiate and reach a mutually acceptable agreement. Under Australian family law, parents are generally required to attempt FDR before applying to the court for a parenting order, except in cases involving family violence, child abuse, or urgent circumstances. An accredited Family Dispute Resolution Practitioner (FDRP) facilitates discussions to help parents find solutions that prioritise the best interests of the child. If an agreement is reached, parents can document it in a parenting plan or apply for a consent order to make it legally binding.
If mediation does not lead to an agreement, the FDR may issue a Section 60I certificate, which is required before either parent can apply to the Federal Circuit and Family Court of Australia (FCFCOA) for a parenting order. This certificate confirms one of several possible outcomes, including that both parents attended mediation but did not reach an agreement, one parent refused to participate, or FDR was deemed inappropriate due to safety concerns.
Seeking legal advice at this stage can help you understand your options, including how to get a fair child custody arrangement. If you remain in dispute, the court may determine arrangements for the children by issuing a parenting order, which carries legal obligations for both parents.
When do you need a parenting order?
If mediation has not resulted in an agreement on a parenting plan, you can apply to the court for a parenting order. A parenting order covers aspects similar to a parenting plan, including living arrangements, time spent with each parent, and decision-making responsibilities, but it is legally binding and must be followed by both parents.
There are two primary types of parenting orders: consent orders and court-ordered parenting orders. Consent orders are made when both parents agree on the parenting arrangements and jointly apply to the court to formalise the agreement. In contrast, court-ordered parenting orders are issued by the court after a hearing or trial when parents cannot reach an agreement.
These orders can address different aspects of a child’s care, including ‘live with orders,’ which determine where the child will primarily reside, and ‘spend time’ with orders, which outline how and when the child will have contact with the other parent. In cases where maintaining relationships is essential, ‘communicate with orders’ to establish how a child will stay in touch with a parent or other significant person through phone calls, video chats, or written communication. The court also makes orders about parental responsibility, ensuring that key decisions regarding education, medical care, and religious upbringing align with the child’s best interests.
Failure to adhere to a parenting order can result in legal consequences, including penalties imposed by the court.
Grandparents and other significant adults in children’s lives
Grandparents, step-parents, and other significant adults often play a vital role in a child’s life, offering emotional support, stability, and a sense of continuity, particularly after parental separation. Recognising these contributions, Australian family law allows for their involvement in formal parenting arrangements, ensuring children can maintain meaningful relationships with important figures.
When creating a parenting plan, you can include provisions facilitating ongoing contact between your child and extended family members. This can outline arrangements for in-person visits, school holiday stays, or regular communication through phone or video calls. Parenting plans allow you to adjust arrangements that align with the child’s best interests and your family dynamics. While not legally enforceable, a well-documented parenting plan serves as a guiding agreement that encourages cooperation between parents and extended family members. If parents wish to formalise these arrangements, they can apply for consent orders, which make the terms legally binding.
In cases where a grandparent or another significant adult believes they need legal recognition of their role in a child’s life, they may apply for a parenting order. To apply, the individual must submit a request to the Federal Circuit and Family Court of Australia (FCFCOA), demonstrating that their involvement is in the child’s best interests. The court will consider factors such as the strength of the relationship, the child’s emotional and physical well-being, and any potential risks.
In most cases, applicants must first attempt family dispute resolution (FDR) before seeking a court order unless exemptions apply.
Additional court orders: location, recovery, and international travel
When a child has been wrongfully taken or retained in breach of a parenting order, a recovery order can be issued to secure their return. This order authorises law enforcement, including the Australian Federal Police, to take necessary action to locate and return the child to their parent or legal guardian. Recovery orders are essential when one parent or another refuses to return a child, disregarding a court order or agreed-upon parenting arrangements. The court considers the best interests of the child before granting a recovery order, ensuring that their stability and welfare are protected.
If a child’s whereabouts become unknown, a location order can be sought to assist in finding them. This order requires individuals or organisations, such as government agencies, Centrelink, or employers, to provide the court with relevant information about the child’s location. Location orders are typically used when a parent or another party has taken a child without consent or has failed to return them under an existing parenting order or agreement.
Taking a child out of the country without proper consent or court approval is a serious offence, especially when parenting orders are in place or pending. Even if there is no specific order addressing international travel, the law requires that a parent obtain either the other parent’s written consent or the court’s permission before taking the child abroad. Failure to do so can result in legal penalties.
To prevent unauthorised international travel, a parent can request that the child’s name be added to the Family Law Watchlist. This measure alerts authorities and can prevent the child from leaving Australia without proper authorisation. These legal provisions aim to protect children’s best interests and uphold the integrity of parenting orders, ensuring that international travel does not disrupt established parenting orders or the child’s well-being.
The role of an independent children’s lawyer in parenting arrangements
Sometimes, the court may appoint an Independent Children’s Lawyer (ICL) to represent and advocate for the child’s best interests. An ICL operates independently, focusing solely on prioritising the child’s welfare.
An ICL is typically appointed in cases where allegations of abuse or neglect, high levels of parental conflict, domestic violence, or when the child is of sufficient maturity to express their views. The impartial approach of the ICL ensures that decisions are made based on a holistic assessment of the child’s welfare.
Legal obligations and penalties for breaching parenting orders
Parenting orders are legally binding, and both parents must comply. When a parenting order is in place, each person involved must take reasonable steps to follow it and encourage compliance. This includes facilitating time spent with the other parent if that is part of the order and not interfering with the arrangements set out by the court. Failing to comply with a parenting order without a reasonable excuse is considered a breach, and the courts take these contraventions seriously.
When a parenting order is breached, the court has the authority to impose penalties depending on the nature and severity of the non-compliance. A parent who fails to adhere to an order may be required to attend a post-separation parenting program to better understand their legal responsibilities and the impact on their child. More serious breaches may result in financial penalties, community service orders, or, in extreme cases, imprisonment.
The court recognises that strict compliance may not be possible in some circumstances. A parent may have a reasonable excuse if they believe their actions were necessary to protect the child’s safety or well-being. However, the burden of proving a reasonable excuse rests with the person accused of breaching the order, and the court will carefully assess the evidence before deciding.
Modifying parenting orders
Rather than failing to comply with an existing parenting order, parents who find that their current arrangements are no longer suitable can negotiate a parenting plan to reflect their changing circumstances. A parenting plan allows both parents to agree on new arrangements without returning to court and can be a practical alternative. If parents want their revised agreement to be legally binding, they can apply for a consent order to formalise the new terms. This approach fosters cooperation and helps maintain a positive co-parenting relationship while ensuring that the child’s best interests remain the priority.
Work with an experienced family lawyer for your parenting arrangements
Finding the right parenting arrangement after separation can be challenging, but prioritising your child’s well-being is key. Wherever possible, starting with a parenting plan allows you to create cooperative arrangements that suit your family’s unique needs. Open communication and a willingness to work together can help create a stable and supportive environment for the child without court intervention.
When disagreements arise, mediation through family dispute resolution (FDR) provides a constructive way to resolve conflicts and reach an agreement that benefits everyone involved. Mediation encourages parents to find common ground while focusing on what is best for their child. In many cases, it is also a required step before applying for a parenting order unless there are urgent circumstances, such as safety concerns or family violence.
Arcadian Legal can help you navigate parenting plans, consent orders, or court-ordered arrangements to create a structure that fosters security, stability, and meaningful relationships.
Whether through a parenting plan, consent orders, or court-ordered arrangements, creating a structure that promotes security, stability, and meaningful relationships will help your child thrive.
