When a couple who have a child or children together separate, it is recommended that they put their personal differences aside and work together to decide what care arrangements are going to work best for their children. If there has been family violence, working together can be difficult.
If parents can reach an agreement about the care arrangements for their child or children, even though there may have been family violence, it can be helpful to formalise that agreement in some way.
To answer this article’s topic question, it is important to understand the difference between a parenting plan, a family violence restraining order, and family court orders.
Before we delve into the detail though, it is important to remember family law’s most important concept – Each case turns on it’s own facts – put simply, every case is different. If you find yourself involved in a family law dispute, or you know someone who is affected by a separation, it is important to seek advice about the circumstances of that case from a family lawyer. If you would like to book in for an initial consultation with one of our experienced family lawyers, please telephone our office on (08) 9375 3411.
What is a parenting plan?
A parenting plan is an agreement that:
- Is in writing;
- Is made between the parents of the child or children;
- Is signed by both parents;
- Is dated; and
- Deals with specific matters in relation to the child or children, such as, who the children live with, spend time with, and how communication is to occur as between the parents and with the children.
Importantly, a parenting plan will not be constituted if either parent has entered the agreement due to a threat, duress, or coercion.
Parenting plans are not enforceable in the Family Court, however, when considering whether to make any parenting orders, the Court must take a parenting plan into account.
As parenting plans are not enforceable, they are often considered less preferable than court orders, however, parenting plans are:
- Often less expensive to prepare; and
- Quicker to prepare.
Often, parenting plans are used as a way to deal with parenting arrangements in the short term, while parties are still working on reaching an agreement about what arrangements are in the best interests of the children for the long term.
What is a family violence restraining order?
Family violence restraining orders (FVROs) make it unlawful for a family member to do certain things, such as, going to or near where another family member lives or works, going within a certain distance of that family member, or contacting or communicating with that family member.
Importantly, an FVRO tries to stop family members from committing family violence or exposing a child to family violence and can extend to protect the children of a relationship as well.
For more information about FVROs, check out this link, or telephone our office on (08) 9375 3411 to discuss your specific circumstances.
What are the effects of having family court orders?
Orders can be made with the consent of both parties, or by decision of the Court on the application of a party or an independent children’s lawyer.
When making any order, whether by consent or not, the Court must consider the best interests of the children as the paramount consideration.
Orders from the Family Court are binding on the parties and carry serious consequences for unlawful non-compliance.
If orders have been made by the Family Court, and are not being followed by one parent, the other parent can apply to the Family Court to enforce compliance, as long as doing so would be in the best interests of the child or children.
So, do parenting plans supersede FVROs or Family Court orders?
Starting with FVROs, the answer is – it depends.
If an FVRO contains a specific exception that the Person Bound will not breach the FVRO if they comply with a parenting plan, then a parenting plan will supersede the FVRO, but, it will only do so to the extent of the inconsistency. If an FVRO does not contain such an exception, the parenting plan will not supersede the FVRO.
If an FVRO has been obtained against you, we strongly recommend that you obtain advice from one of our experienced family lawyers to ensure you do not breach the FVRO when otherwise attempting to comply with a parenting plan. Equally, we recommend that you obtain advice about the drafting of a parenting plan to ensure that it deals with issues concerning the conflict between the FVRO and the parenting plan.
In respect of court orders, the answer is, again – it depends.
Obtaining orders from a Court often brings about a sense of finality, however, often the orders must be effective for many years and parties will occasionally need to alter the terms of the orders to continue to meet the best interests of the children.
There are provisions in the legislation which have the effect that a parenting plan made after court orders will supersede the court orders. However, there is another provision that says that this will not be the case if the Court has, when making their orders, specifically stated that a parenting plan made after the court orders will not supersede the court orders.
The reason behind each of these provisions is to encourage parties to come to their own, child-focussed agreement, however, the court will not allow this to be the case if they are concerned that a party may feel compelled to enter a subsequent parenting plan because of threats, duress, or coercion.
Our family lawyers have significant experience in resolving conflicts in parenting disputes. If you have an enquiry about how we might be able to help you or someone you know make the separation process clearer, please contact our office on (08) 9375 3411.