What is a Parenting Order?
A Parenting Order is an order made by the Family Court that deals with the parenting arrangements for children after a divorce or separation.
The terms of a Parenting Order may be mutually agreed by both parents (often through family dispute resolution) and made by the Court by consent of the parties or it may be made by a Judge of the Court on an Application by a parent in contested proceedings.
Is a Parenting Order the same as a Parenting Plan?
No. A Parenting Plan is a written agreement reached by both parents setting out care arrangements for their children.
The main advantage of a Parenting Plan is that they do not need to be approved by the Court and they are more flexible and easier to amend. They are also likely to cost considerably less than a Parenting Order (especially if that Order is made after an argument between the parties in the Family Court).
The potential downside, however, is Parenting Plans are not legally enforceable if or when parents deviate from or do not adhere to their terms; this may lead to family conflict in future.
A Parenting Order, on the other hand, is a legally binding document and would be enforced by the Courts in the event of a parent breaching any of its terms. Parenting Orders may be amended if required but this requires the consent of both parties or a further Court Order (unless amendment mechanisms have been built into the terms of the Orders).
What can a Parenting Order cover?
Parenting Orders can cover virtually any matter relating to the care and welfare of children. Every divorce or separation comes with its own circumstances, so including as comprehensive a range of possibilities can be helpful to avoid future conflict.
Matters covered in parenting orders may include the following:
- where children would live and when they spend time with the other parent
- time spent with other people important in the children’s lives, e.g. grand parents
- education arrangements – which schools the kids will attend
- handover arrangements – which parent will deliver and collect the children, when and to and from what location
- special occasions – how the children will spend specified special occasions such as birthdays, mothers & fathers days, school holidays, Christmas and family gatherings
- medical issues – how the children’s health care is to be handled and by which parent
- communication issues – arrangements for how and when the parties shall communicate about children’s issues and with the children when not in their care
- relationships and contact with other people – arrangements for the children to have contact with (or not) other particular family members and friends, i.e. grandparents, cousins, etc.
- back-up arrangements where a parent is unavailable
- travel arrangements both interstate or internationally –arrangements for the children to travel interstate or internationally and issues around their passports.
When is a Parenting Order appropriate?
A Parenting Order may be appropriate in a several situations including the following:
- where parents are unable to agree on how their children will be cared for after separating. (i.e. living arrangements, access to the children, etc)
- where there may be a risk of child abuse or violence
- when a Parenting Plan may not provide adequate assurance to the parents because it is not legally binding or enforceable
- preventing removal of children from the care of a parent or relocated elsewhere
How do you apply for a Parenting Order?
The family law requires divorcing or separating parents to first attempt family dispute resolution before applying to the Courts for a Parenting Order.
If family dispute resolution is successful the family dispute resolution practitioner will advise you on how to apply to the Court to implement the terms of agreements that have been reached at mediation.
Resolving your disputes by family mediation is by far the easiest, quickest and cheapest way and avoiding the necessity of a disputed action in the Family Court.
Agreements reached by mutual consent in family dispute resolution stand a far better chance of parties abiding by the terms of that agreement.
If family mediation fails or is inappropriate, the family dispute resolution practitioner will issue you with an exemption certificate, allowing you to proceed with your application to the Family Court.
The Court process can be fairly complex and the Family Court requires certain criteria to be met. The Court’s main objective is for the children to continue enjoying a meaningful relationship with both parents provided that this is seen to be in the best interests of the child. Obtaining legal advice is strongly recommended before applying.
If you and your ex have reached an agreement on the care of your children and you want to make it legal and enforceable, you can apply to the Court for a Parenting Order.
You can lodge your own application online but, once again, legal advice is strongly recommended before making such an application.
What are the penalties for breaching a Parenting Order?
As with any Order handed down by the Court, breaching a Parenting Order is a serious matter and the Court may impose an array of penalties. Depending on the severity of each case, penalties can range from the offending parent being ordered to attend a parenting program, fined or in severe cases, even a term of imprisonment. Contact with the children may also be restricted where a person is breaching a Parenting Order.
Because they are legally enforceable, Parenting Orders may serve as a significant deterrent to either parent to breach their terms. So all parties have a degree of certainty where Parenting Orders are in place.
