Parenting Plan or Court Order – What should I do?

As a family lawyer, I regularly provide advice about parenting matters. The goal is to negotiate an agreement to the satisfaction of my client that will resolve a dispute following separation, and avoid litigation where possible.

If no agreement can be reached about your parenting dispute, the Federal Circuit and Family Court of Australia requires parties to attempt mediation, with the exception of risk to a party or child, or domestic and family violence.

It may be necessary to make an Application to the Federal Circuit and Family Court of Australia (the Court) for a decision to be made about your dispute.

With litigation comes financial and emotional stress, and delay. The Court is currently working towards a timeframe of around 12 months from the time you commence your case, (which could be some months following negotiation and mediation), to a final hearing.

In taking your dispute to trial, you also lose the ability to determine an outcome, as this will be left to a Judge. The Court is concerned with your child’s right to have a safe and meaningful relationship with both parents.

It is always preferable to resolve a dispute without litigation and to reduce the stress between parents following separation. Where an agreement can be reached there are two preferred choices to record the terms. One is to apply for a Court Order under an Application for Consent Orders.

These Applications are made to the Court and are scrutinized in accordance with family law legislation. There is no appearance required in Court. If accepted, sealed Orders are made and kept as a record of the Court. The sealed Orders can be relied upon and can be enforced if a party is not complying with the terms.

Depending on the circumstances of your separation, it may be necessary to have a Consent Order made. While an Application for Consent Orders is still filed with the Court, it is very different to a contested litigation. The operative word is “consent”.

The alternative to any Court documentation is to enter into a Parenting Plan. Parenting Plans are often made where an agreement has been reached between the parties. Parenting Plans can be relied upon as an agreement reached at a point in time about certain parenting matters but they are not enforceable. This is the most distinguishing feature of a Court Order, which can be enforced or relied upon in a Contravention proceeding.

The benefits of entering into a Parenting Plan is that your agreement can be documented, it can be relied upon with some confidence and can be a lower cost alternative to the production of Court documents including an Application for Consent Orders or contested Court proceedings. Parenting Plans often include provisions that require parents to review the terms at a later time, particularly where the dispute concerns young children, and a scaffold or transition in time between children and parents is required.

Court Orders can provide a roadmap in high conflict matters requiring the assistance of the Court. Over time Court Orders made become impractical or outdated, depending on individual circumstances. It is often difficult to make one set of Court Orders that will be applicable to all circumstances concerning children from infancy into their late teens. Parenting Plans can provide the flexibility for parties to come to an agreement for an agreed period of time. Agreement can be reached in either a Court Order or a Parenting Plan for the parties to resolve any future dispute through Alternate Dispute Resolution, rather than returning to Court for a decision.

If you are considering arrangements for younger children, Parenting Plans can be most helpful in transitioning the needs of children as they become more independent. A Parenting Plan can be prepared with the assistance of a Mediator either through a private mediation conference or through a community Mediation service.

What is important is that thought is given to the range of issues that are important to your family, and that there is flexibility that supports the overall plan to document arrangements to support your family, and particularly children, following separation.

Contact Catton & Tondelstrand Lawyers to arrange an appointment to discuss any concerns you may have about your family law matter.

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