The differences between Parenting Plans and Parenting Orders are at once both broad yet nuanced. To best understand the differences and the relationship between them you first need to know what they are and where they fit into family law.
Framing Parenting Plans and Orders
To truly understand Parenting Plans and Parenting Orders it is important to understand where they fit into family law and how they are framed in the family law environment.
The Family Law Act (1975)
The Family Law Act (1975) is a watershed piece of legislation that places the best interests of the child at the very centre of family law. Every aspect and avenue of family law has this understanding as its focus.
With this in mind it’s important for family mediation clients to recognise that the outcomes of mediation (parenting plans and or financial and property agreements) or family court (parenting orders) are focussed on nothing more than what is in the best interests of the child.
Parenting Rights and Responsibilities
Recently, during a family mediation intake session a Resolutions Australia client used the phrase ‘Child custody mediation.’ While both she and the mediator knew what was intended it was important for the mediator to provide information to the client to reframe their thinking about the nature of the mediation.
Since 1975 and the passing of the Family Law Act, most professionals in the field don’t use the term ‘custody.’ It is seen as a negative, that a child is the ‘property’ of the parent. Family dispute resolution practitioners and family lawyers now talk of parenting responsibilities e.g ‘As your child will be spending alternate weeks with each parent the parent they’re with is responsible for meeting their needs.’
Most FDRP’s and family lawyers have clients who talk about their ‘rights’ as parents. The Family Law Act (1975) doesn’t talk about rights. It talks about responsibilities. Parents have responsibilities to the children impacted.
With this framing in mind it is essential that a Parenting Plan or Parenting Order is in place to ensure that the best interests of the child are considered and acted upon and that parents understand the responsibilities they have.
What is a Parenting Plan?
A Parenting Plan is a plan developed between divorcing parents that outlines how they will go about parenting given the new family situation.
The plan isn’t a legal document and can’t be enforced. Rather, it is a moral agreement between the parents with the expectation that it will be followed by both parties.
The Scope of a Parenting Plan
Parenting plans can cover whatever is needed within the split family to ensure the children are parented effectively and their needs are met. For many this can be as simple as organising which parent the child will be with and when, pick up and drop off times, emergency contacts, and holiday and special occasion considerations. For others the plan may be significantly deeper in content. It could include health care decision making, how and when parents will communicate, educational decision making, the role of new partners/spouses, extended family and trusted adult time, parents undertaking parenting and/or anger management courses etc. It really is the old adage of ‘How long is a piece of string?’
Most importantly the parenting plan should be a reflection of the expressed issues of the parents in relation to the best interests of the children impacted. This of course varies between families but should always frame the thinking of all parties to family mediation.
The Parenting Plan Process
A parent plan is essentially a co-parenting agreement that is developed with the support of a family dispute resolution practitioner (family mediator.)
The mediator will complete individual intake sessions with both parties to explain the process, hear their story, find out about the children impacted, and begin to get the parties to consider options and priorities.
After intake the mediator will schedule a mediation session and while the two parties in conflict contribute the content of the mediation the family mediator will facilitate and manage the mediation.
Time will be spent talking about the children and their current and future needs. Time spent brainstorming and suggesting ideas around parenting will also happen. From here the family dispute resolution practitioner will help the parents narrow their focus and come to agreement about how they will move forward. The family mediator will reality test ideas with the parents, highlight areas that may need further examination, and slowly draft the plan as it emerges.
Once agreed on the plan is written up, signed, and distributed.
What is a Parenting Order?
Legal? Yes. Enforceable? Yes. A parenting order is a binding, legally enforceable family court order that a judge imposes on split parents following a court hearing. The parents, who have usually attempted mediation, simply can’t reach an agreement and as such the judge hears from both sides and issues the order in the best interests of the children.
A parenting order can cover exactly the same topics as a parenting plan.
The Parenting Order Process
To get a parenting order the Family Court expects both parent parties to have made a genuine attempt at mediation. There are exceptions such as situations where domestic violence and safety are issues or when one of the parents doesn’t attend mediation or simply can’t be contacted.
If the former couple have tried mediation but simply been unable to agree then their family dispute resolution practitioner (the mediator) gives both parties a section 60i certificate which acknowledges this. This certificate is given to the respective parties’ lawyers who then schedule a court hearing.
At the family court hearing (the waiting list may be many months!) lawyers from both sides of the situation put across their thoughts and ideas for consideration by the judge. It’s possible to represent yourself in this hearing however it’s the experience of Resolutions Australia that this is rarely as effective as using a lawyer.
How the Judge Decides
So, the judge has heard all the information from both sides of the situation. They may have also asked questions of both sides for further detail or clarification. Now they need to make a decision. This decision usually won’t happen on the day unless it is urgent. It will take time and expert consideration.
The judge will make decisions based on the best interests of the child by using all they’ve heard regarding the split family, perceived current needs, external considerations such as parent’s working life, schooling, future needs, health and/or welfare concerns, family and domestic violence issues, parental conduct, the views of any external agencies supporting the family, and family history.
The parenting order will be made and handed down with lawyers able to explain all aspects of it with their clients.
Parenting orders, by law, must be followed. Failure to do so can result in fines, compensatory time, and in rare cases, imprisonment.
When a Parenting Plan becomes a Parenting Order
When mediation is successful…
Congratulations, you and your ex have attended family mediation and have developed an authentic, realistic parenting plan. In recognising that you’d both like it to become a formal, legally enforceable document you hand it to your respective lawyers who then present it to the family court. The family court will then turn this agreement into a Consent Order. This isn’t done at a hearing, changes are generally not made (as you’ve already both agreed to it) and now, for extra surety, you’ve just had your parent plan turned into a legal document.
Many clients choose to do this if they have concerns about how the other parent will cope with the parenting plan. Many clients simply follow their parenting plan, often for years, without any concerns or the need to make the plan enforceable.
And when it isn’t
As noted above, when family dispute resolution isn’t successful court is often the next step. This step takes the parenting decision making out of the parent’s hands. The judge will make the decisions after a family court hearing.
This process is expensive when compared to mediating successfully and it’s a consideration we always mention to clients at Resolutions Australia. This cost is often compounded as the parents, wanting to make changes to parenting orders as their circumstances change, then have to return to court to do this as the parenting order is a legal document. The same is true of consent orders.
At Resolutions Australia we strongly emphasise the importance of resolving parenting issues as soon as possible and as collaboratively as possible. We want you to save time, money, and untold negative emotional energy on the adversarial process of family court where decision making is taken away from you.
At Resolutions Australia we recognise that as parents you know what’s best for your children. If you’re determined to do the best for your children and develop a parenting plan that’s personalised for your split family then we stand ready to support you and look forward to you getting in contact!
