In today’s Family Law Fundamentals we’re going to take a look at parenting orders as defined in Part VII, Division 5 of the Family Law Act 1975 (Cth) (“the Act”). Part VII of the Act deals with children’s matters in general, and s.64B (in Division 5 of Part VII), defines what a parenting order is.
A parenting order may deal with one or more of the following:
This list provides a good summary of the types of matters that will need to be considered, debated and decided upon in any family law matter that involves children.
All these factors need to be canvassed to ensure that any agreement between the parties provides sufficient guidance to manage the parenting relationship into the future (assuming that the conflict level is so high that the parents are unlikely to agree outside of mediation or court processes). Any agreement that does not consider all these aspects might need to be revisited in the event of a later dispute or disagreement so it’s best to consider all possibilities to reduce the potential for future conflict.
Once the parties have considered all these aspects and reached an agreement, either through private discussion, mediation or negotiation via lawyers, there are a few options as to how that agreement can be recorded.
The simplest method of recording an agreement is via a parenting plan. Parenting plans are simply an agreement between the parents of a child about how the practical issues of parenting will be managed. Only the parents of a child are able to make a parenting plan (s.63C(1)(b)). Section 63C goes into detail about the types of things a parenting plan may deal with.
Although people tend to think of parenting plans as a contract because they are an agreement signed by both parties, parenting plans are not enforceable. They are, however, evidence of intention and s.65DAB of the Act requires the Court to consider the terms of the most recent parenting plan when considering what orders to make in any later application, subject of course to the the best interests of the child. Parenting plans were once able to be lodged with the Court but that is no longer possible.
Because parenting plans are unenforceable, lawyers tend not to recommend them. They can, however, be useful if the conflict between the parties is not too high (which is generally not the case once people have reached the stage of consulting lawyers). Essentially, the success of parenting plans rests upon the good will of the parties to follow the agreement in good faith. They can be a good option if you and your ex are on good terms and are committed to respectful co-parenting.
Relationships Australia has compiled a handy information kit which guides you through the process of preparing a parenting plan.
Consent orders are orders that the parties agree on and ask the court to make by stating their consent to be bound by them. Once made, the orders have the same power as if a judge had made the orders following a trial. Accordingly, consent orders are fully enforceable by the court. You don’t need to attend court to have consent orders made, however, the court must be convinced that it is proper to make the orders.
A party may apply to the Family Court of Australia for consent orders, pursuant to Rule 10.15 of the Family Law Rules 2004 (Cth), by filing an Application for Consent Orders. The Application for Consent Orders Kit contains a ton of useful information including definitions of commonly used terms, things you need to consider, what the Court must consider, how to set out your orders and other relevant information.
Although you can do-it-yourself when it comes to consent orders, the difficulty is that the Court cannot just make any old order that you ask it to – it has to satisfy itself that the orders are in the best interests of the child/children. Accordingly, the application must set out enough information and make a case that sufficiently convinces the Court that it should make the orders.
If the parties cannot reach an agreement then they can make an Application for Final and/or Interim orders. This application asks the court to consider all the issues and make a determination. It is still possible to consent to orders during the course of such an application (or to bring it to a close), however, if there is no agreement then the matter will proceed to hearing by a judge and the judge will make final orders that will bind the parties.
We’ve compiled thousands of consent order applications and are able to advise you on whether the terms of your proposed consent orders are compliant and prepare the application to give you the best chance of success. Alternatively, if no agreement is possible, we can prepare, file and represent you in any application for court orders. Because of our flexible service delivery practice model, and our commitment to ‘unbundled’ legal services, we can do as little or as much as you want us too. Book now.
